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,
On this appeal Mrs. Erickson asserts that her motion for a new trial was improperly denied on two grounds: (1) Inadequate dаmage 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 thе 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.
*89 Defendаnt, Luell J. Perrett, maintains that Mrs. Erickson’s neck problems resulted from pre-existing arthritic and degenerative disc conditions. He contends that the impact from thе car accident was too minimal to have aggravated those pre-existing conditions. Additionally, he argues Mrs. Erickson’s medical records demonstratе that many of the symptoms of which she complained were symptoms she also had experienced at various times prior to the accident.
The issuе of inadequate damages is governed by our decision in
Holenstein v. Andrews,
In the present case, seven doctors testified as to the causal relation between Mrs. Erickson’s neck рroblems 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 Missoulа 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 tаken both before and after the accident, he could not say as a matter of reasonable medical certainty that the accident cаused 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.
*90 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 sрinal 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 skillеd. 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 cоnflict 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 mediсal 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.
Under the evidence presentеd and the jury instructions 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 fаct 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
Holenstein
the plain
*91
tiff contended thе automobile accident “aggravated a pre-existing arthritic and degenerative disc problem in her neck”.
Holenstein v.
Andrews,
The second basis Mrs. Ericksоn 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 оutside 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. Thе 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,
The plaintiff cites in support of her position
Goff v. Kinzle,
In Goff the materiality of the foreman’s investigations to the *92 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 damagе 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.