Mountain West Farm Bureau Mut. Ins. Co. v. Girton, 84-86

• Decision Date: 11 April 1985
• Docket Number: No. 84-86,84-86
• Citation: 42 St.Rep. 500,215 Mont. 408,697 P.2d 1362
• Parties: MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, a corporation, Plaintiff, Counter-defendant and Respondent, v. John R. GIRTON and Barbara Girton, Defendants, Counter-claimants and Appellants.
• Court: Montana Supreme Court

Page 1362

697 P.2d 1362

215 Mont. 408

MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, a corporation, Plaintiff, Counter-defendant and Respondent, v. John R. GIRTON and Barbara Girton, Defendants Counter-claimants and Appellants.

No. 84-86.

Supreme Court of Montana.

Submitted on Briefs Jan. 18, 1985.

Decided April 11, 1985.

Hooks & Budewitz, Townsend, for plaintiff, counter-defendant and respondent.

Landoe, Brown, Planalp & Lineberger, Gene I. Brown, Bozeman, for defendants, counter-claimants and appellants.

HUNT, Justice.

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 jury verdict review is 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.1983), 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.

In 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 appellants 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 jury'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 appellants 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 large 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 jury verdict is supported by substantial 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's case in chief and it therefore was improper rebuttal. However, the respondent argued that although the testimony did rebut testimony from its own...