Garrett v. Raytheon Co., Inc.
Decision Date | 26 January 1979 |
Citation | 368 So.2d 516 |
Parties | Jerry Kenneth GARRETT and Claudell Weathers Garrett v. RAYTHEON COMPANY, INC. 77-606. |
Court | Alabama Supreme Court |
Leo E. Costello, Birmingham, for appellants.
E. Ted Taylor, Prattville, President, Alabama Trial Lawyers Assn., R. Ben Hogan, Birmingham, for amicus curiae, The Alabama Trial Lawyers Assn., in support of application for rehearing.
Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellees.
Thomas W. Christian, Pres., Ala. Defense Lawyers Assn., Birmingham, Harold F. Herring, Executive Vice-Pres., Ala. Defense Lawyers Assn., Huntsville, Stancil R. Starnes, Sec.-Treas., Ala. Defense Lawyers Assn., Birmingham, for amicus curiae, Alabama Defense Lawyers Assn., in opposition to application for rehearing.
When does the statute of limitations begin to run for injuries suffered as a result of radiation exposure? We conclude that it begins to run when the plaintiff is exposed to radiation and an injury occurs. This was the trial court's conclusion when it held the plaintiff's claim was barred by the statute of limitations. We agree and affirm.
On February 17, 1978, appellant (plaintiff below) filed suit against defendants General Electric Corporation, Western Electric Company, Inc., Raytheon Company, P. R. Mallory Company, Inc., General Electric Company, Inc., American Telephone and Telegraph Company and South Central Bell Telephone Company, Inc.
In his complaint he alleges in "COUNT ONE" the following:
Count Two is in wantonness. Count Three is under the Alabama Extended Manufacturer's Liability Doctrine; Count Four alleges strict liability, while Count Five alleges negligence, wilfulness and wantonness; and Count Six avers that defendants negligently, wilfully and wantonly withheld information from plaintiff that the radar systems presented hazards.
Defendant Raytheon, appellee here, filed a motion to dismiss upon grounds of failure to state a claim upon which relief can be granted and the statute of limitations.
The trial court granted the motion to dismiss making the finding in compliance with Rule 54(b) whereupon plaintiff Garrett appealed.
The very basic and long settled rule of construction of our courts is that a statute of limitations begins to run in favor of the party liable from the time the cause of action "accrues." The cause of action "accrues" as soon as the party in whose favor it arises is entitled to maintain an action thereon.
Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So.2d 468, 473 (1973).
The class of cases exemplified by Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925), and West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909), expresses the Same rule although in a different context, and the Basic principle is the same. Thus, there are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff's injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action "accrues," and the statute of limitation begins to run, "when, and only when, the damages are sustained." Over sixty years ago, Justice Sayre so expressed it in his opinion for the Court in Kelly, et al. v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).
In West Pratt Coal plaintiff's upper soil cracked open and settled down several years after mining had taken place beneath the surface. Plaintiff brought suit within one year after the soil settled. In stating that the statute had not run, the Court held that the plaintiff had nothing of which to complain until the enjoyment of the lot was interfered with by the settling of the soil, i. e., no cause of action had "accrued" until that time.
In Kelly, supra, this Court held that the statute of limitations had run against a plaintiff who sought damages more than six years after he had contracted with a surveyor to survey and map certain property and who, plaintiff claimed, had negligently mapped it. The Court held that plaintiff's ignorance of the injury, when there was no Fraudulent concealment, did not postpone the running of the statute until the injury was discovered.
The same rule has long been followed in this state with reference to medical malpractice. In Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), this Court held, in an opinion authored by Justice Bouldin, that Neither difficulty of ascertainment Nor ignorance of the cause of action will toll the statute of limitations unless superinduced by Fraud. In Hudson v. Moore, plaintiff sought damages in 1938 for an alleged negligent act in 1923 of leaving a gauze sponge in a patient's body after a gall bladder operation. The court held the statute had run.
As recently as 1972, this Court, in Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972), held that an action for malpractice for leaving in a bulldog clamp after surgery was governed by the medical malpractice statute of limitations, Act No. 766, Acts of Alabama, 1953, page 1027 ( ). That act specified a limitation of two years. The jury found for the defendant and on appeal the contention was made that there was error in the court's charge that if the jury were reasonably satisfied that the...
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...affirmed the summary judgment, without an opinion. Cline applied for a rehearing, which this Court granted. In 1979, in Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), this Court considered the case in which Jerry Garrett sued several companies, claiming that he had unknowingly been expo......
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McMillian v. Johnson
...as a "continuous tort." See, e.g., Continental Casualty Ins. Co. v. McDonald, 567 So.2d 1208, 1216-17 (Ala. 1990); Garrett v. Raytheon Co., 368 So.2d 516, 521 (Ala.1979). The statute of limitations on continuous torts begins to run on the last day on which the plaintiff was injured by defen......
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...200 Cal. App.3d 1075, 1080-81, 246 Cal.Rptr. 385 (1988)) (emphasis added). That holding is comparable to the holding in Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), superseded by statute on other grounds, as noted in Johnson v. Garlock, Inc., 682 So.2d 25 (Ala.1996). In Soliman, the N......
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