                                      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


         ~ p l :i    985
Filed:




                                       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 a 3 1 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.


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