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 1 9 j9f. 

-c; 59 1.17 

Filed: - 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an action for damages allegedly resulting from 

an automobile accident in which plaintiff's car was struck from 

behind by defendant's car. The original trial resulted in a 

jury verdict for the defendant on the issue of liability. On 

appeal this Court granted a new trial on the basis that the jury 

had ignored proof of,negligence and proof of property damage. 

Erickson v. Perrett, 169 Mont. 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 appeal Mrs. Erickson asserts that her motion for 

a new trial was improperly denied on two grounds: (1) Inadequate 

damage award, (2) jury misconduct prejudicial to plaintiffs occurred. 

Mrs. Erickson contends that the automobile accident caused 

a whiplash injury resulting in severe headaches, excruciating 

pain in her neck, numbness in her right arm and hand, and nervousness. In March, 1973, she underwent 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 from pre-existing arthritic and degenerative disc conditions. He contends that the impact from the car 

accident was too minimal to have aggravated those pre-existing 

conditions. Additionally, he argues Mrs. rickso on's medical 
records demonstrate that many of the symptoms of which 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). In Holenstein the plaintiff was involved in an automobile 

accident for which the defendant admitted liability. Plaintiff 

contended that the accident aggravated a pre-existing arthritic 

and degenerative disc problem, but the jury awarded her no damages. Although there was no direct evidence that plaintiff's 

pre-existing conditions were not aggravated by the accident, we 

held there was 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, normal motion 

of her neck without much 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 not worsen or affect Mrs. 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 taken both 

before and after the accident, he could not say as a matter of 

reasonable medical certainty that the accident caused any of Mrs. 

Erickson's problems. He testified there was no medical probability 

that the accident was the cause of her problems. 

We hold that this evidence is sufficient to support the 

jury's verdict that Mrs. Erickson's damages did not result from 
the 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 neurosurgeon who discovered 

Mrs. Erickson's herniated disc and performed the spinal fusion, 

concluded that the automobile accident caused the herniated 

disc. 

The jury was instructed: 

"A witness who has special knowledge, skill, 

experience, training or education in a particular 

science, profession or occupation may give his 

opinion as an expert as to any matter in which he 

is skilled. In determining the weight 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. 

"In resolving any conflict that may exist in the 

testimony of expert witnesses, 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 expert witnesses, 

as well as the reasons for each opinion and the 

facts and other matters upon which it is based." 

(Emphasis added.) 

Dr. Harris based his opinion in part on Mrs. 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 conflicted with plaintiff's version 

of the severity of the impact. He also showed that Mrs. Erickson 

did not relate to her examining doctors her history of medical 

problems and a head injury she had sustained prior to the automobile accident. Additionally, other medical experts testified 

that the automobile accident was 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 from 
the instant case and therefore, not controlling. She bases 

this argument on the fact that in the instant case the automobile accident allegedly caused a herniated disc in her neck, 

a fact not present in Holenstein. This distinction makes no 

difference. In EIolenstein the plaintiff contended the automobile accident "aggravated a 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 case Mrs. 

Erickson also suffered from a pre-existing arthritic and degenerative disc problem which she claims was aggravated by the 

automobile accident. Holenstein is, therefore, controlling. 

The second basis Mrs. Erickson urges for a new trial is 

jury misconduct. On the last day of the trial several of the 

jurors inadvertently saw defendant's car during the noon recess 

where it was 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 headlights was broken in the collision. 

In contrast, defendant introduced photographs showing the damage to his car in which there were no broken headlights. To 

settle this dispute, defendant moved that the jury be allowed 

to view his car. The District Court denied this motion 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 conduct materially 

affecting the substantial rights of the complaining party. Not 

every act of jury misconduct, however, mandates a new trial. 

See, e.g., Schmoyer v. Bourdeau, 148 Mont. 340, 420 P.2d 316 

(1966); Nelson v. C. & C. Plywood Corp., 154 Mont. 414, 465 P.2d 

314 (1970). The alleged jury misconduct must affect a material 

matter that is in dispute and must prejudice the complaining party. 
Schmoyer, supra; Nelson, supra. 

The plaintiff cites in support of her position Goff 

v. Kinzle, 148 Mont. 61, 417 P.2d 105 (1966). In Goff the 

foreman of the jury went to the scene of the car accident the 

night before the case went to the jury. He spent 30 to 45 minutes conducting experiments and then prepared a map 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 jurors who saw defendant's car stated that they 

did not search out the car, nor did they make any measurements 

or tests regarding the damage done to it. Other jurors by 

affidavit swore that no juror provided any new or different information concerning the condition of defendant's car. We, 

therefore, find no prejudice in this case. 

Judgment affirmed. 

Justice 

Justices