KENT, Circuit Judge.
Plaintiffs, in this diversity action, claim to have been seriously injured in a collision between an automobile owned by the defendant, John Porter, and operated by his wife, Cheryl B. Porter, and a motor vehicle occupied by the plaintiffs. (The parties will be referred to as in the Court below). The collision occurred in the State of Kentucky on July 2, 1968. The Porters are residents and citizens of the State of Kentucky, plaintiffs are citizens of the State of Maryland. This action was filed on June 23, 1970, with John Porter and Cheryl B. Porter as defendants. On defendants' motion the trial court dismissed the action on the ground that it was barred by the applicable Statute of Limitations of Kentucky, K.R.S. § 413.140(1)(a), which provides:
The plaintiffs appeal from the dismissal of the action as to the defendant, John
Under the provisions of the Soldiers' and Sailors' Civil Relief Act the period of active military service is excluded in computing the period of limitations provided for the bringing of any action by or against a member of the armed forces:
§ 525. Statutes of limitations as affected by period of service
Clearly the quoted section of the Statute has no reference to the defendant, Cheryl B. Porter, and the action of the trial court in dismissing this case as to her is correct. From this action the plaintiffs take no appeal.
The plaintiffs in instituting an action against John Porter must necessarily rely upon the "family purpose doctrine" of the State of Kentucky which fixes liability for the negligent operation of an automobile used for "family purposes," without regard to the existence of any actual negligence on the part of such owner. That doctrine is clearly applicable in this case. Turner v. Hall's Adm'x., 252 S.W.2d 30 (Ky.1952); Richardson v. True, 259 S.W.2d 70 (Ky. 1953).
The defendant asserts, however, that the "family purpose doctrine" is one which creates "vicarious" liability and is derivative in nature, and that any statute which bars an action against the principal tortfeasor is therefor a bar to a suit against one who is vicariously liable because of ownership of the motor vehicle involved. This is the general rule applicable in an action against a principal for an agent's tortious conduct. 3 Am.Jur.2d § 339.
Some of the language in the decisions of the Court of Appeals for Kentucky suggests that the "family purpose doctrine" is based upon the relationship of principal and agent or master and servant. Turner v. Hall's Adm'x., 252 S.W.2d 30; Griffith v. Fannin, 306 Ky. 279, 206 S.W.2d 965 (1947). However, the Court of Appeals analyzed the "family purpose doctrine" in McNamara v. Prather, 277 Ky. 754, 127 S.W.2d 160 (1939), and described it as follows, at page 161:
With this analysis of the "family purpose doctrine" by the Kentucky courts we cannot say that the general rules relating to the applicability of Statute of Limitations in suits against a master or principal are applicable in a suit against an owner, made liable by the "family purpose doctrine."
While we recognize that there may be a similarity between the master and servant or principal and agent rule, and the rule applicable to an action of this nature, we must consider also the purpose of the Soldiers' and Sailors' Civil Relief Act, recognizing that under Kentucky law the person primarily liable under the "family purpose doctrine" is not an essential party in a suit by an injured person. Gray v. Golden, 301 Ky. 477, 192 S.W.2d 371 (1946); McNamara v. Prather, 277 Ky. 754, 127 S.W.2d 160 (1939).
The Soldiers' and Sailors' Civil Relief Act was adopted by the Congress to protect the rights of individuals in the military service of the United States, and also to protect the rights of individuals having causes of actions against members of the Armed Forces of the United States. Stewart v. Kahn, 11 Wall. 493, 78 U.S. , 20 L.Ed. 176 (1871); Wolf v. C. I. R., 264 F.2d 82 (3rd Cir. 1959); Thompson v. Reedman, 201 F.Supp. 837 (E.D.Pa. 1961); Zitomer v. Holdsworth, 178 F.Supp. 504 (E.D.Pa.1959). As stated by the Court of Appeals for the Third Circuit in Wolf v. C. I. R., at pages 87 and 88 of 264 F.2d:
The District Judge in Zitomer v. Holdsworth, 178 F.Supp. 504 (E.D.Pa. 1959), in applying the Soldiers' and Sailors' Civil Relief Act said at pages 505, 506:
Thus it is apparent that the Soldiers' and Sailors' Civil Relief Act means exactly what it says, "The period of military service shall not be included."
Since, as pointed out in this opinion the operator of the car, Cheryl B. Porter, was not an essential party to an action under the laws of the State of Kentucky there exists no reason why the defendant should be protected by a statute of limitations of which his wife was able to take advantage. The Soldiers' and Sailors' Civil Relief Act is preemptive in nature and makes the Kentucky Statute of Limitations inapplicable to the action by the plaintiffs against the defendant, John Porter.
The judgment of the trial court is reversed and the case is remanded for further proceedings.