FILED

February 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION

PATRICIA STEPHENS and husband, ) C/A NO. 03A01-9708-CV-00351

CHRIS STEPHENS, )

) LOUDON CIRCUIT

Plaintiffs-Appellants, ) 

) HON. RUSSELL E. SIMMONS, JR.,

v. ) JUDGE

)

REVCO DISCOUNT DRUG )

CENTERS, INC., ) AFFIRMED

) AND

Defendant-Appellee. ) REMANDED

JOHN P. NEWTON, JR., McGEHEE & NEWTON, Knoxville, for PlaintiffsAppellants.

BARRY K. MAXWELL and MARY JANE BORDEN, EGERTON, McAFEE,

ARMISTEAD & DAVIS, P.C., Knoxville, for Defendant-Appellee.

O P I N I O N

Franks, J.

In this action, the Trial Court granted summary judgment to defendant

on the basis that the cause of action was barred by the one-year statute of limitations. 

Plaintiffs have appealed.

The complaint complains of defendant’s pharmacist improperly filling a

prescription on the 22nd day of June, 1991 for plaintiff Patricia. The complaint was

filed on February 18, 1997, and the record establishes that virtually the same

complaint had previously been filed on June 10, 1992 and was voluntarily dismissed
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on March 15, 1994, and again filed on February 18, 1995 and voluntarily dismissed on

March 4, 1996.

Plaintiffs insists that the cause of action sounds in contract, and hence,

the six-year statute of limita tions is applicable. 

The Supreme Court has said “action” as used in the statutes of limitation

refers to and embodies concepts of subject matter and the nature of the action is not

determined by the form of the complaint. Carney v. Smith, 437 S.W.2d 246 (Tenn.

1969). The rule is well established in this jurisdiction that the gravamen of the action,

rather than its designation a s an action in tort or contrac t, determines the applicable

statute of limitations. This rule was recently applied by the Supreme Court in Mike v.

Po Group, Inc., 937 S.W.2d 796 (Tenn. 1996). The Court in that opinion at page 793,

said:

Since summary judgment was granted on the ground that the plaintiffs’

causes of action were barred by the one year statute of limitations, the

Court must determine which statute of limitations applies to the

plaintiffs’ suit, which depends upon the nature of the cause of action

alleged. The gravamen of a complaint and the injury alleged determine

which statute of limitations applies. Vance v. Schulder, 547 S.W.2d

927, 931 (Tenn. 1977). To ascertain the gravamen of the action, the

Court must look to the ba sis for which damages are sought. Bland v.

Smith, 197 Tenn. 683, 277 S.W.2d 377, 379 (1955).

The complaint in this cause alleges that defendant filled a prescription

for Carisoprodol for Patricia, and a fter taking the prescription she became violently ill

and discovered that “penicillin was placed in the bottle by the Revco pha rmacist in

error, rather than Carisoprodol, and taken by the plaintiff, proximately causing her

injury.” The complaint further alleged that the defendant owed a duty of due care to

plaintiffs in filling the prescription, and that it breached the duty of care “by acting in

a grossly negligent manner by giving penicillin to the plaintiff, rather than

Carisoprodol.” The complaint concludes that plaintiff “was physically injured and

suffered great pain and discomfort” and the plaintiff’s damages were “as a direct and
1

The husband’s claim was for loss of consortium.

3

proximate cause of the defendant’s gross negligence.”1

 

The sum and substance of pla intiffs’ complaint alleges tortious conduct,

and when the rule that the gravamen of the compla int determines the applicable statute

of limitations is applied, it is clear that the Trial Judge acted properly in dismissing

this complaint on the grounds the one year statute of limitations barred the

maintenance of this action.

Accordingly, we affirm the judgment of the Trial Court and remand at

appellants’ cost.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Charles D. Susano, Jr., J.

___________________________

Don T. McMurray, J.