No. 84-86 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

MOUNTAIN WEST FARM BUREAU MUTUAL 

INSURANCE COMPANY, a corporation, 

Plaintiff, Counter-defendant 

and Respondent, 

JOHN R. GIRTON and BARBARA GIRTON, 

Defendants, Counter-claimants 

and Appellants. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Hooks & Budewitz, Townsend, Montana 

For Respondent : 

Landoe, Brown, Planalp & Lineberger; Gene I. Brown, 

Bozeman, Montana 

Submitted on Briefs: Jan. 18. 1955 

Decided: April 11, 1985 

Filed: ~pli : 985 

Clerk 
I. Justice William E. Hunt, Sr., delivered the Opinj-on of 

the Court. 

The appellants', John R. and Barbara L. Girton's, house, 

insured by the respondent, Mountain West Farm Bureau Mutual 

Insurance Company, was damaged by a fire that had been 

intentionally set. The respondent sought a declaratory 

judgment that the appellants were responsible for the fire. 

The appellants counterclaimed for coverage, damages for 

emotional distress and punitive damages for bad faith. A 

jury trial ended in a verdict for the respondent and this 

appeal followed. 

We affirm. 

The appellants first contend that the evidence is not 

sufficient to support the jury verdict. When an issue on 

appeal concerns the sufficiency of the evidence to support a 

iury verdict review j.s governed by established principles. 

The standard for review is substantial evidence. If 

substantial evidence supports the case of the prevailing 

party the verdict will stand. The evidence will be viewed in 

a light most favorable to the party that prevailed at trial 

and, if the evidence conflicts, the credibility and weight 

given to the evidence is the province of the jury and not 

this Court. See, Lackey v. Wilson (Mont. 19833, 668 P.2d 

1051, 1053, 40 St.Rep. 1439, 1440-1441; Griffel v. Faust 

(Mont. 1983), 668 P.2d 247, 249, 40 St.Rep. 1370, 1372-1373; 

Estate of Holm (1978), 179 Mont. 375, 379, 588 P.2d 531, 

533-534. 

Tn arguing to support their contention that the evidence 

is insufficient the appellants emphasize that they were in 

New Jersey at the time that the fire occurred. Presence, 
however, is not a requisite element in proving 

responsibility. Presence is only a factor that the jury 

could have weighed in reaching its verdict. The appel-lants 

also stress that the actual arsonist was not discovered. The 

identity of the arsonist, like presence, is not a requisite 

element in proving responsibility. It, too, is only a factor 

that the jury could have weighed. The identity of the 

arsonist is also not required to prove an agreement or 

conspiracy. The jury need only find that the appellants 

agreed with someone that the fire would be set. The identity 

of that someone need not be known. 

The appellants argue that they have contested each 

element of the evidence that could have any bearing on the 

iury's determination. In reviewing the record we find that 

the evidence is in conflict but it is within the province of 

the jury to determine what evidence shall prevail. 

The record demonstrates that the jury verdict is 

supported by substantial evidence. Several months prior to 

the fire the appellants had moved a valuable coin collection 

and stamp collection, both uninsured, from the premises. The 

appel-lants had stored valuable business inventory and 

business equipment, both insured, in the premises. The house 

payments were a significant expense to the appellants. The 

house had been for sale at one time and did not sell. The 

house was heavily insured. An unusually larqe amount of 

gasoline was stored in the premises. Some of the gasoline 

storage containers were of a type compatible with the arson 

scheme. Some of the arson paraphernalia belonged to the 

appellants. The arson scheme fit the insurance arsonist 

profile and was incompatible with other arson profiles such 

as revenge or vandalism. 
We hold the iury verdict is supported by substanti.a1 

evidence. 

The appellants next allege that the District Court erred 

in allowing a witness to testify after the close of the case 

in chief because the witness was not a proper rebuttal 

witness and the witness was not listed in the pretrial list 

of witnesses. Prior to the testimony, the appellants 

objected on the grounds of improper rebuttal and surprise. 

The District Court heard both parties on the matter and 

allowed the testimony. 

The appellants had argued that the testimony was offered 

to rebut testimony from the respondent"^ case in chief and it 

therefore was improper rebuttal. However, the respondent 

argued that although the testimony did rebut testimony from 

its own case in chief it more critically was offered to show 

that they did not commit bad faith in not investigating 

certain clipped burglar alarm wires, evidence of which was 

from appellants' case in chief. 

It is true that rebutting evidence is confined to that 

which tends to counteract new matter offered by the adverse 

party, Gustafson v. Northern Pacific Ry. Co. (19601, 137 

Mont. 154, 164, 351 P.2d 212, 217, however, the parties are 

not confined to rebuttal evidence after the close of the case 

in chief if the court, for good reasons in the furtherance of 

justice, permits them to offer evidence in their original 

cause. Section 25-7-301 (4) , MCA. 

We find that it was in the interests of justice to allow 

this testimony and, in part, it was offered to counter a new 

matter offered by the appellant owners. An issue in the case 

was whether the respondent acted in bad faith in pursuing the 

insurance claim. One allegation by the appellants was that 
the respondent's investigation was incomplete. A factor that 

had a bearing on the issue was whether the respondent should 

have more thoroughly investigated the cl ipped burglar alarm 

wires. If it could be shown that at the time of the fire the 

burglar alarm system was inoperable and that the respondent 

knew this, the respondent's investigation could fairly be 

limited in that aspect. 

As to the appellants' objection of surprise, we find 

that the appellant requested only ten minutes to prepare for 

the witness. The District Court granted this request. No 

further request for time was made. If the appellants could 

not prepare for the witness more time should have been 

requested and it is improper now to allege that inadequate 

time to prepare was granted. 

The appellant next alleges that the evidence of 

statenents made by one of the appellants several years prior 

to the fire about "torching" a building was irrelevant and 

prejudicial. The District Court allowed evidence in the form 

of witness testimony that one of the appellants had been 

interested in purchasing a building but the owner had wanted 

a high price. The witness stated that the appellant kind of 

laughed and said something to the effect of "why not torch 

it, maybe we could get a better price." The witness further 

testified that he took it a31 in jest. 

The statement was made several years prior to the fire 

here in question, and the circumstances under which it was 

made demonstrate that it had little bearing on the past or 

present motive of the appellant. The jury was aware of the 

time and circumstances 'of the statement. They were also 

informed that it was taken in jest. While the testimony may 

be questionable, the District Court has wide discretionary 
power to admit evidence. Admitting this testimony was within 

the District Court's discretion. 

Affirmed. 

We Concur: 

, 

Justices 

Mr. Justice John C. Sheehy, specially concurring: 

I would nold that the District Court abused its discretion 

in admitting the "torching" statement, which I deem to be 

ancient. 

However, the error was harmless. 

\ -. ,/=&&. .-k: &/dW1 

/ Justice I