Plaintiff, Elizabeth Collins, recovered judgment against defendant, J. S. Skaggs, in tbe sum of $500.00 fоr malpractice.
The defendant, a reputable physician, is engaged in rendering necessary medical aid to the families of employees of several coal companies in Eаleigh County. On or about March 1, 1930, plaintiff’s husband (E. D. Collins) while employed as a miner for one of said companies, reported to Dr. Skaggs thаt his wife and children were suffering from colds or influenza. The doctor thereupon gave Collins, for their treatment, a bottle of cough syrup and 15 or 20 tablets in a small envelop with directions to take one every hour or half hour.' Collins promptly returned home with the medicinе. Soon after his arrival his wife took one of the tablets and in ten or fifteen minutes thereafter became so sick that she had to be helped to her bed. Collins immediately returned to Doctor Skaggs with the remaining tablets, reporting the occurrence. The doctor, on examining the same, found that he had, through mistake, given postassium рermanganate instead of calcidine. He immediately cаlled at the Collins home and administered to Mrs. Collins several antidotes and prescribed others for her to take in his absence. The рotassium permanganate produced severe nausea, burning sensation in the mouth, throat and stomach, causing her to vomit at intеrvals from about two o’clock in the afternoon until seven or еight o’clock the following morning. Plaintiff testified that she suffered great pain from the immediate effect of the drug, and since taking it had lost weight, experienced a failing of eyesight and suffered with her back and kidneys. The defendant and four other physicians testified, substantially, that the potassium permanganate taken by plaintiff would not have caused her any permanent injury. She admits having suffered intermittently from influenzа or colds after taking the tablet. She had also experienced a miscarriage a few weeks before.
The defendant rеlies upon two points of error. First, that the court improperly еxcluded his instruction B; and, second, that the verdict is excessive. Instructiоn B would have told the jury that plaintiff’s alleged loss of weight, impaired *520 eyesight, or affection of kidneys or back was not attributed to the tаking of potassium permanganate, and that they could not, in assеssing her damages, take into consideration any of these complaints. The jury were, however, virtually so instructed by two instructions given at thе instance of the court. The first advised them that the potassium permanganate tablet taken by the plaintiff did not cause her any permanent injury, and that in arriving at their verdict they could not “take into сonsideration any of the alleged permanent injuries,” which she сlaims to have suffered. The second informed the jury that they could nоt, in estimating plaintiff’s damages, take into consideration pain or mental anguish due to influenza or other physical ailment. •
The trial сourt may refuse an instruction presenting a theory of the ease substantially covered by instruction or instructions already granted.
State
v.
Vineyard,
The law furnishes no measure of damages for pain and suffering. In such case, the decision of the jury upon the amount is generally conclusivе, unless it is so large or small as to induce the belief that the jury was influenced by passion, partiality, corruption, or prejudice or misled by some mistaken view of the case.
Trice
v.
C. & O. Ry. Co.,
The judgment is affirmed.
Affirmed.