Defendant has moved to dismiss the complaint in this personal injury negligence action on the ground that it was not filed within two years after the cause of action accrued, the period provided by the statute of limitations (N.J.S. 2 A:14-2) for bringing such actions.
The cause of action accrued on December 21, 1955, when plaintiff, a passenger in an automobile driven by defendant, was injured, allegedly due to defendant's negligence. The complaint was not filed until April 2, 1959, three years, three months, twelve days thereafter. But the uncontradicted proofs submitted on this motion establish that during that period plaintiff was in the active military service of the United States for two years, from December 11, 1956 until December 10, 1958.
50 U.S.C.A. Appendix , § 525, § 205 of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended and supplemented, provides:
"The period of military service shall not be included in computing any period now or hereafter limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, nor shall any part of such period which occurs after the date of enactment of the Soldiers' and Sailors' Civil Relief Act Amendments of 1942 [Oct. 6, 1942] be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax, or assessment."
The phrases, "persons in military service," "military service," "period of military service," and "court" as used in the quoted section are defined by 50 U.S.C.A. Appendix , § 511 to mean:
"(1) The term 'persons in military service' and the term 'persons in the military service of the United States,' as used in this Act [sections 501-548 and 560-590 of this Appendix], shall include the following persons and no others: All members of the Army of the United States, the United States Navy, the Marine Corps, the Coast Guard, and all officers of the Public Health Service detailed by proper authority for duty either with the Army or the Navy. The term 'military service,' as used in this Act [said sections], shall signify Federal service on active duty with any branch of service heretofore referred to or mentioned as well as training or education under the supervision of the United States preliminary to induction into the military service. The terms 'active service' or 'active duty' shall include the period during which a person in military service is absent from duty on account of sickness, wounds, leave, or other lawful cause.
(2) The term 'period of military service,' as used in this Act [said sections], shall include the time between the following dates: For persons in active service at the date of the approval of this Act [Oct. 17, 1940] it shall begin with the date of approval of this Act [Oct. 17, 1940]; for persons entering active service after the date of this Act [Oct. 17, 1940], with the date of entering active service. It shall terminate with the date of discharge from active service or death while in active service, but in no case later than the date when this Act [said sections] ceases to be in force.
(4) The term 'court,' as used in this Act [said sections], shall include any court of competent jurisdiction of the United States or of any State, whether or not a court of record."
And 50 U.S.C.A. Appendix , § 512(1) provides:
"The provisions of this Act [sections 501-548 and 560-590 of this Appendix] shall apply to the United States, the several States and Territories, the District of Columbia, and all territory subject to the jurisdiction of the United States, and to proceedings commenced in any court therein, and shall be enforced through the usual forms of procedure obtaining in such courts or under such regulations as may be by them prescribed."
Unless for some reason 50 U.S.C.A. Appendix , § 525 does not apply, it requires that the period of plaintiff's military service not be included in computing the two-year period limited by the New Jersey statute of limitations for the bringing of this personal injury action; hence, only one year, three months, and twelve ...