                  IN THE COURT OF APPEALS OF TENNESSEE

                                   EASTERN SECTION                    FILED
                                                                      February 10, 1998

PATRICIA STEPH ENS and husband,                                 Cecil Crowson, Jr.
                                              ) C/A NO. 03A01-9708-CV-00351
                                                                 Appellate C ourt Clerk
CHRIS STEPHENS,                               )
                                              ) LOUD ON CIR CUIT
       Plaintiffs-Appellants,                 )
                                              ) HON . RUS SELL E. SIM MO NS, JR .,
v.                                            ) JUDGE
                                              )
REVCO DISCOUNT DRUG                           )
CEN TER S, INC .,                             ) AFFIRMED
                                              ) AND
       Defendant-Appellee.                    ) REMANDED




JOHN P. NE WTON , JR., McGEHEE & NEW TON, Knoxv ille, for Plaintiffs-
Appellants.

BARRY K. MAXWELL and MARY JANE BORDEN , EGERTON, McAFEE,
ARMISTEA D & DAV IS, P.C., Knoxville, for Defendant-Appellee.




                                        O P I N IO N


                                                             Franks, J.




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

on the b asis that th e cause of actio n was barred by the on e-year statu te of lim itations.

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
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-ye ar statute of limita tions is a pplicab le.

                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

determ ined by th e form of the c ompla int. 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 d esignation a s an action in tort or contrac t, determines the applicab le

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

Po G roup, In c., 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 o f limitatio ns app lies. Vance v. Schulder, 547 S.W.2d
                927, 931 (Tenn. 1977). To ascertain the gravamen of the action, the
                Court m ust look to the ba sis for w hich da mage s are sou ght. Bland v.
                Smith, 197 Tenn. 683 , 277 S.W.2d 37 7, 379 (1955).

                The complaint in this cause alleges that defendant filled a prescription

for Cariso prodol fo r Patricia, and a fter taking th e prescription she becam e violently ill

and disco vered that “ penicillin w as placed in the bottle by the R evco pha rmacist in

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

injury.” The co mplaint fu rther alleged that the defe ndant ow ed a duty of d ue care to

plaintiffs in fillin g the prescr iption, and th at it breached the duty of ca re “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


                                                 2
proxim ate cau se of th e defe ndant’ s gross n egligen ce.” 1

               The sum and substa nce of pla intiffs’ com plaint alleges to rtious cond uct,

and wh en the rule th at the grava men of th e compla int determin es the applic able 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’ c ost.




                                               __________________________
                                               Herschel P. Franks, J.


CONCUR:




___________________________
Charles D. Susano, Jr., J.




___________________________
Don T. McM urray, J.




   1

   The husband’s claim was for loss of consortium.


                                                3
