The opinion of the court was delivered by: MCCUNE
We consider a motion for a new trial, filed by plaintiffs, a motion that plaintiffs be permitted to take an appeal in forma pauperis, and a post trial motion filed by defendant that judgment be entered against plaintiffs for $ 10,955.51, the amount which the defendant paid Mellon Bank to discharge a mortgage covering the real estate which is the subject of this litigation.
The plaintiffs, husband and wife, owned a residence as tenants by the entireties, which was destroyed by fire on the night, or early morning, of August 12, 1979. The defendant insured the premises against loss by fire in what is commonly called a homeowner's policy. The premises were mortgaged to Mellon Bank.
The defendant refused to pay for the loss, alleging that Janice Opat had burned the house intentionally, although defendant paid Mellon the balance of the mortgage debt.
The plaintiffs were separated as the result of domestic trouble, the husband having moved from the premises sometime in June of 1979. The wife remained in the family home with one child.
In her case in chief, Janice Opat testified concerning her domestic trouble which she attributed in large part to her affair with her husband's brother, Robert Opat. On the night of the fire she admitted being away from home and in a motel with Robert and her child about three years old. She had left her home at about six o'clock, had met Robert at a carwash, and had gone with him in his vehicle to the motel, where they had spent the night. Janice testified that she knew nothing of the fire until she returned to her home in the morning. She denied leaving the motel during the night.
Both David and Janice, in their testimony, attributed the fire, by inference, to Robert's wife, Marlene Opat, who would understandably be hostile to both Janice and Robert. They testified that a broken radio antenna had been found in their driveway after the fire which they considered to have come from Marlene's car.
Janice also testified that she had found that on August 6, 1979, some six days before the destruction of the property, someone had tried to start a fire at her basement door while she was asleep at home and that her phone had been ringing from time to time under suspicious circumstances because when it was answered there was no response.
The state fire marshal testified that in his opinion, the fire was of incendiary origin but that he could not determine the origin or the cause. A police officer was called by the plaintiffs concerning his investigation of the April 6 fire which was inconclusive according to his testimony.
It appeared that at the close of the plaintiffs' case, they had introduced evidence of incendiary origin, denied starting the fire and cast suspicion on Marlene.
In defense, a private fire investigator gave the opinion that the fire was of incendiary origin and gasoline or kerosene was the agent used. Another investigator testified that David Opat had been given a deadline by Janice of August 9, 1979, by which he was to remove his stereo equipment, the main possession of David, which he was to be given as part of the division of personal property.
A neighbor testified that Janice and she were close friends, that Janice had expressed the wish to her that the house would burn so that she and Robert could buy a Corvette automobile and go to Florida. The witness testified that Robert frequently visited Janice at her home, that the witness was familiar with Robert's car and the sound it made, that the car had driven into Janice's driveway the early morning of August 12, 1979, had left and had returned about an hour later and had left again, that Janice's dog was usually kept in Janice's cellar, but on that night was allowed to run loose and had spent the night in the witness' home.
The defendant convinced the jury that Janice and Robert planned the fire to raise money, planned the August 6 fire to cast suspicion on Marlene, went to the motel to create an alibi, returned during the night where one of them remained in the house long enough to use the agent, the other ...