No. 84-86 INTHE SUPREME COURT OF THE STATEOF 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 andAppellants.

APPEAL FROM: District Court of the Fifth Judicial District, Inand for the County of Beaverhead, The Honorable Frank Davis, Judgepresiding.

COUNSEL OF RECORD:

ForAppellants: 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: 

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ClerkI.Justice William E. Hunt, Sr., delivered the Opinj-onof the Court.
The appellants', JohnR. 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 verdictwill stand. The evidencewill 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 arsonistwas not discovered. The identity of the arsonist, like presence, is not a requisite element inproving 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 agreedwith someone that the fire would be set. The identity of that someoneneed notbe 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 iswithin the province of the jury todeterminewhat evidence shallprevail. The record demonstrates that the jury verdict is supported by substantial evidence. Several months prior to the fire the appellantshad moved a valuable coin collection and stampcollection,both uninsured, from thepremises. The appel-lants had stored valuable business inventory and business equipment,both insured, in thepremises. Thehouse 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 containerswere 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 incompatiblewith other arson profiles such
as revengeorvandalism.We hold the iury verdict is supported by substanti.a1 evidence. Theappellants next allege that the DistrictCourt erred in allowing awitness to testify after the closeof 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 appellantshad argued that the testimonywas offered to rebut testimony from therespondent"^ case in chiefand it therefore was improper rebuttal. However, the respondent argued that although the testimony did rebut testimony from its own case in chief it more criticallywas offered to show that they did not commit bad faith in not investigating certain clipped burglar alarm wires, evidence of which was fromappellants' 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 interestsof justice to allow this testimony and, inpart, itwas offered to counter a new matter offered by the appellantowners. An issue in the case
waswhether the respondentacted in bad faith inpursuing the insurance claim. One allegation by the appellantswas thatthe respondent's investigationwas incomplete. A factor that had a bearing on the issuewaswhether the respondent should have more thoroughly investigated the clipped burglar alarm wires. If it couldbe 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 thataspect. As to the appellants' objection of surprise, we find that the appellant requested only ten minutes toprepare 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 topreparewas granted. The appellant next alleges that the evidence of statenentsmade by one of the appellants severalyearsprior to the fire about "torching" a building was irrelevant and prejudicial. TheDistrictCourt 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." Thewitness further testified thathe took it a31in jest. The statementwas 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 itwas taken in jest. While the testimonymay be questionable, the District Court has wide discretionarypower to admit evidence. Admitting this testimony waswithin the District Court's discretion. Affirmed.

We Concur:

,Justices

Mr. Justice John C. Sheehy, specially concurring: Iwould nold that the District Court abused its discretion in admitting the "torching" statement,which I deem tobe ancient. However, the errorwas harmless.

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