Picture of John Day

§42.13 Soldiers and Sailors Civil Relief Act of 1940

The Case: Henderson v. Miller , 477 S.W.2d 197 (Tenn. 1972).

The Basic Facts: Plaintiff was involved in an automobile accident with Defendant and brought suit to recover damages. Defendant, however, was drafted into military service and Plaintiff was not able to obtain service on Defendant for approximately two years.

The Bottom Line:

  • "The suit was filed on August 25, 1969, by filing of summons which was returned unexecuted as to defendant. On December 18, 1969, an alias summons was issued and returned unexecuted as to defendant. On January 6, 1970, a pluries summons issued which was also returned unexecuted as to defendant. The next and final summons was issued on April 20, 1971, which was served on defendant on April 21, 1971." 477 S.W.2d at 197.
  • "For the purpose of argument of the motion, Counsel for the respective parties filed the following stipulation:
    It is agreed and stipulated between the parties for the purpose of the hearing upon the motion to dismiss filed therein that the defendant, Fred Miller, was drafted into the United States Army and was called out of the State of Tennessee and stationed in Fort Bragg, North Carolina from August 27, 1969 until January 27, 1970, at which time the United States Army sent him overseas to Vietnam, and that he returned to the United States and the State of Tennessee, and specifically to Knox County, Tennessee, on March 30, 1971."
    Id .
  • "The second assignment is as follows:
    The trial court erred in sustaining the defendant Fred Miller's motion to dismiss in that all statutes of limitations are extended as a matter of law under Sections 510; 511; 512 and 525 of the 'Soldiers' and Sailors' Civil Relief Act of 1940' during the period that the defendant was actually serving in the armed forces."
    Id . at 197-98.
  • "Defendant argues the assignment is not good for two reasons: the first being the Soldiers' and Sailors' Civil Relief Act of 1940 was passed for the protection of persons in the armed services and not for the protection of a civilian; plaintiff in this case. Secondly, plaintiff could have obtained service of process upon defendant through the Secretary of State." Id. at 198.
  • "We are of the opinion both grounds are without merit.
    F.C.A. Section 50 U.S.C. App. 525 provides:

    The period of military service shall not be included in computing any period now or hereafter to be 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.

    Despite the 'unambiguous nature of the words by or against any period in military service', the contention has been made that the general purpose of the Civil Relief Act to benefit servicemen requires that limitations should not be suspended as to actions against a man in service so as to benefit his opponent, but this argument has been rejected. * * * * Provisions of the Act tolling the statute of limitations may be invoked by civilians as well as by persons in the armed forces.
    54 Am. Jur.(2d), Section 341, page 158; 26 A.L.R.2d 284; 155 A.L.R. 1455; 157 A.L.R. 1454; 158 A.L.R. 1456; and 75 A.L.R.2d 1062." Id.
  • "The fact service of process could have been perfected upon defendant through the Secretary of State did not affect plaintiff's cause since under the Act the period of defendant's military service would be excluded in computing the period of limitations." Id.

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.



The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson
★★★★★