Moon v. Harco Drugs, Inc.

Decision Date08 July 1983
Citation435 So.2d 218
PartiesHershal MOON and Jo Ann Moon v. HARCO DRUGS, INC., et al. 82-290.
CourtAlabama Supreme Court

C. Alan Burdette, Birmingham, for appellants.

Ann McMahan Perry of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellees.

MADDOX, Justice.

In this case, this Court is asked once again to determine when a cause of action for negligence accrued in order to correctly apply the applicable statute of limitations. The trial judge held that the statute of limitations barred the plaintiffs' action. We affirm.

Appellant Jo Ann Moon, a diabetic, has treated her condition with daily injections of NPH-U-100 insulin since 1977. On or about December 13, 1980, appellant Hershal Moon, Jo Ann's husband, purchased a package of insulin from appellee Harco Drugs, Inc. at its store located in Roanoke, Alabama. Hershal Moon claimed that he asked the Harco Drug employee for NPH-U-100 insulin. Jo Ann Moon first took an injection of the drug purchased from the appellee on December 14, 1980, and continued to take daily injections. She became ill on December 20 or 21, 1980, and entered the hospital on December 31, 1980. From December 14, 1980, until December 31, 1980, Mrs. Moon had continued to take daily dosages of the insulin purchased from Harco Drugs, Inc. On December 31, 1980, Mrs. Moon, during her stay in the hospital, however, stopped her daily injections of insulin purchased from Harco. After being hospitalized for a 9-11 day period, Mrs. Moon was released. She injected herself again with the insulin purchased from Harco Drugs, Inc. at least once more, but ceased the injections on January 13, 1981, when she discovered that her husband had purchased U-100 insulin and not NPH-U-100 insulin. The evidence tended to prove that the bottle was clearly labeled U-100 insulin.

The Moons filed their complaint against Harco Drugs, Inc. on January 12, 1982, in which they alleged that Harco sold Mr. Moon U-100 insulin, instead of NPH-U-100 insulin, on January 13, 1981. In her deposition, however, Mrs. Moon testified that the sale took place on December 13, 1980, not January 13, 1981. In the complaint, Mrs. Moon alleged that she sustained personal injuries after injecting herself with U-100 insulin; Mr. Moon alleged that he sustained personal injuries, out-of-pocket losses, and the loss of his wife's services as a result of her injections of U-100 insulin.

Harco Drugs filed a motion for summary judgment on the basis that the Moons' actions were barred by the one-year statute of limitations of Code 1975, § 6-2-39(a)(5) and (7). The trial court granted that motion and the Moons appealed.

The pertinent portions of Code 1975, § 6-2-39 state:

"(a) The following must be commenced within one year:

" * * *

"(5) Actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section; and

" * * *

"(7) All actions commenced to recover damages for injury to the person or property of another wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant or employee under the doctrine of respondeat superior."

Because the Moons have named Harco Drugs, Inc. as the defendant, this one-year statute is applicable.

The Moons argue that their cause of action accrued on January 13, 1981, when she discovered for the first time that the bottle contained U-100 insulin and not NPH-U-100 insulin. The trial judge obviously concluded that as a matter of law the cause of action accrued on December 20 or 21, 1980, when Mrs. Moon first became ill or at the latest, on December 31, 1980, when Mrs. Moon entered the hospital, because the court granted Harco's motion for summary judgment.

This Court has repeatedly held that a cause of action accrues when the injury occurs, Ramey v. Guyton, 394 So.2d 2, 5 (Ala.1980); Garrett v. Raytheon Co., Inc., 368 So.2d 516, 519 (Ala.1979); Kelly v. Shropshire, 199 Ala. 602, 75 So. 291 (1917), and in so doing, this Court has refused to accept the so-called "discovery rule." In Garrett v. Raytheon Co., the Court stated the principal rule of law thusly:

"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.

" 'We have held that the statute begins to run whether or not the full amount of damages is apparent at the time of the first legal injury. In Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917), the rule was stated as follows:

" 'If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, be the actual damage (then apparent) however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action. Nor does plaintiff's ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.' " (Emphasis added.)

368 So.2d at 518-19.

In the present case, the cause of action accrued when Ms. Moon first became ill from the U-100 insulin on December 20 or 21, 1980. Any injury which resulted from taking the U-100 insulin arose at that time, and not, as the Moons argue, when she later discovered that she was taking the wrong insulin. The trial judge's holding that this cause of...

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  • Evans v. Walter Industries, Inc.
    • United States
    • U.S. District Court — Northern District of Alabama
    • September 23, 2008
    ...fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.'" Moon v. Harco Drugs, Inc., 435 So.2d 218, 220 (Ala.1983) (quoting Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917)) (emphasis in Moon). CERCLA applies to claims that a......
  • Tuscumbia City Sch. Sys. v. Pharmacia Corp.
    • United States
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    ...defendants claim that the rule is limited to claims for personal injuries. The cases, however, seem otherwise. In Moon v. Harco Drugs, Inc., 435 So.2d 218 (Ala.1983), for example, the Supreme Court had occasion to review the continuing tort rule. It cited as examples of the rule American Mu......
  • Mobile Cnty. Bd. of Health & Family Oriented Primary Health Care Clinic v. Fisher (Ex parte Abbott Labs.)
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    • Alabama Supreme Court
    • May 28, 2021
    ...trespass in that the repeated actions of the defendants combined to create a single cause of action in tort." Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220-21 (Ala. 1983) (emphasis added). See also Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1216 (Ala. 1990) (holding that "an a......
  • Tucker v. Tombigbee Healthcare Auth. (Ex parte Hodge)
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    • February 7, 2014
    ...the cause of action accrues and the limitations period of § 6–5–482 commences when the legal injury occurs. Moon v. Harco Drugs, Inc., 435 So.2d 218, 219 (Ala.1983) ; Ramey v. Guyton, 394 So.2d 2, 4–5 (Ala.1981).“Mobile Infirmary argues that [the plaintiff's] claims are barred by § 6–5–482 ......
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