No. 13762 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

TYYRA J. ERICKSON, Plaintiff and Appellant,

-vsLUELL J. PERRETT, Defendant and Respondent.

Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Boone, Karlberg and Haddon,Missoula, Montana Sam E. Haddon argued, Missoula, Montana For Respondent: George, Williams and Benn, Missoula,Montana Shelton C. Williams argued, Missoula, Montana

Submitted: December 1, 1977 ~ecided:DEC 

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## -Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This is an action for damages allegedly resulting from

an automobile accident inwhich plaintiff's car was struck from behind by defendant's car. The original trial resulted in a jury verdict for the defendanton the issue of liability. On appeal this Court granted a new trial on the basis that the jury had ignoredproof of,negligenceand proof of property damage. Erickson v. Perrett, 169Mont. 167, 545 P.2d 1074, 1078, 33 St. Rep. 109 (1976). In the new trial plaintiffs, Tyyra and Nils Erickson, received a directed verdict against the defendant

on the issue of liability. On the issue of damages the jury awarded Nils Erickson the full amount of damages to his car, but awarded no damages to Tyyra Erickson for injuries allegedly caused by the accident. Tyyra Erickson appealed. On this appealMrs. Erickson asserts that her motion for

a new trial was improperlydenied on two grounds: (1) Inadequate damage award, (2) jurymisconduct prejudicial to plaintiffs occurred. Mrs. Erickson contends that the automobile accident caused

a whiplash injury resulting in severeheadaches, excruciating pain in her neck, numbness in her rightarm and hand, and nervousness. InMarch, 1973, sheunderwent a spinal fusion to correct a herniated disc which she alleges resulted from the accident. Prior to the accident,Mrs. Erickson worked full-time as a foreman in a meat packing plant. Since the accident, she has not returned to work allegedly because of the pain in her neck and her limited neck movement due to the spinal fusion. Defendant, Luell J. Perrett,maintains that Mrs. rickso on's neck problems resulted frompre-existing arthritic and degenerative disc conditions. He contends that the impact from the car accidentwas too minimal to have aggravated those pre-existing conditions. Additionally, he argues Mrs. rickso on's medicalrecords demonstrate thatmany of the symptomsofwhich she complained were symptoms she also had experienced at various times prior to the accident. The issue of inadequate damages is governed by our decision in Holenstein v. Andrews, 166 Mont. 60, 530 P.2d 476

(1975). InHolenstein the plaintiff was involved in an automobile accident for which the defendantadmitted liability. Plaintiff contended that the accident aggravated a pre-existing arthritic and degenerative disc problem, but the jury awarded her no damages. Although therewas no direct evidence that plaintiff's pre-existing conditions were not aggravated by the accident,we held therewas sufficient circumstantial evidence presented to support the jury's verdict. In the present case, seven doctors testified as to the causal relation between Mrs. Erickson's neck problems and the

car accident. Dr,Burton, a Missoula orthopedic surgeon,examined Mrs. Erickson on February 13, 1973. In this examination he found no nerve damage in her neck,no numbness,normalmotion of her neck withoutmuch pain when moving her neck, no actual bone injury nor any ruptured ligaments. He checked for and found

no evidence of a ruptured disc. He concluded that the accident did notworsen or affectMrs. Erickson's cervical spine disease. Another Missoula orthopedic surgeon,Dr. Jacobsen, examined Mrs. Erickson prior to both of the trials. Based on his examination and a review of X-rays of Mrs. Erickson's neck takenboth before and after the accident,he could not say as a matter of reasonablemedical certainty that the accident caused any of Mrs. Erickson's problems. He testified therewas no medical probability that the accidentwas the cause of her problems. We hold that this evidence is sufficientto support the jury's verdict thatMrs. Erickson's damages did not result fromthe automobile accident. Plaintiff argues that the jury cannot disregard the medical testimony of Dr. Albert Harris regarding the cause of her herniated disc. Dr. Harris, the neurosurgeonwho discovered Mrs. Erickson's herniated disc and performed the spinal fusion, concluded that the automobile accident caused the herniated disc. The jurywas instructed: "Awitness who has special knowledge, skill, experience, training or education in a particular science, profession or occupationmay give his opinion as an expert as to anymatter inwhich he is skilled. Indetermining theweight to be given such opinion,you should consider the qualifications and credibility of the expert and the reasons given for his opinion. You are not bound by such opinion. Give it the weight, if any, to which you deem it entitled. "Inresolving any conflict thatmay exist in the testimony of expertwitnesses, you should weigh the opinion of one expert against that of another. In doing this,you should consider the relative qualifications and credibility of the expertwitnesses, aswell as the reasons for each opinion and the facts and other matters upon which it is based." (Emphasisadded.) Dr. Harris based his opinion inpart onMrs. Erickson's version of the severity of the automobile accident and what she told him of her prior medical history. Defendant introduced evidence that sharply conflictedwith plaintiff's version of the severity of the impact. He also showed that Mrs. Erickson did not relate to her examining doctorsher history of medical problems and a head injury she had sustainedprior to the automobile accident. Additionally, other medical experts testified that the automobile accidentwas not the cause of Mrs. Erickson's neck problems. instructions Under the evidence presented and the jury/given, the jury could properly disregard Dr. Harris' testimony. Plaintiff argues that Holenstein is distinguishable fromthe instant case and therefore,not controlling. Shebases this argument on the fact that in the instant case the automobile accident allegedly caused a herniated disc in her neck, a factnot present in Holenstein. This distinctionmakes no difference. In EIolenstein the plaintiff contended the automobile accident "aggravateda pre-existing arthritic and degenerative disc problem in her neck". Holenstein v. Andrews, 166 Mont. 60, 62, 530 P.2d 476 (1975). In the instant caseMrs. Erickson also suffered from a pre-existing arthritic and degenerative disc problem which she claimswas aggravated by the automobile accident. Holenstein is, therefore,controlling. The second basis Mrs. Erickson urges for a new trial is jurymisconduct. On the lastday of the trial several of the jurors inadvertently saw defendant's car during the noon recess where itwas parked outside the courthouse. Conflicting testimony as to the amount of damage done to defendant's car had been introduced at trial to demonstrate the severity of impact between the two cars. Plaintiffs testified that one of defendant's headlightswas broken in the collision. In contrast,defendant introduced photographs showing the damage to his car inwhich there were no broken headlights. To settle this dispute,defendant moved that the jury be allowed to view his car. The District Court denied thismotion feeling it was inappropriate for the jury to see the car. Section 93-5603,R.C.M. 1947,provides that a new trial may be granted when there has been jury conductmaterially affecting the substantial rights of the complainingparty. Not every act of jurymisconduct,however,mandates a new trial. See, e.g., Schmoyer v. Bourdeau, 148Mont. 340, 420 P.2d 316

(1966);Nelson v. C. & C. Plywood Corp., 154 Mont. 414, 465 P.2d 314 (1970). The alleged jurymisconduct must affect amaterial matter that is in dispute and must prejudice the complaining party.Schmoyer, supra; Nelson, supra. Theplaintiff cites in support of her position Goff

v. Kinzle, 148Mont. 61,417 P.2d 105 (1966). In Goff the foreman of the jurywent to the scene of the car accident the night before the casewent to the jury. He spent 30 to 45minutes conducting experiments and then prepared amap of the scene. He showed all of this to the jury the next day. In Goff the materiality of the foreman's investigations to the plaintiff's case and the prejudice to plaintiff was obvious. Such is not the situation in the present case. Affidavits by the jurorswho sawdefendant's car stated that they did not search out the car,nor did theymake anymeasurements

or tests regarding the damage done to it. Other jurors by affidavit swore that no juror provided any new or different information concerning the conditionof defendant's car. We, therefore, find no prejudice in this case. Judgment affirmed.

Justice

Justices