Titus

Plaintiff insurance carrier appeals from an' adverse judgment in a subrogation action predicated upon an insurance claim paid a landlord for fire loss alleged to have been caused by defendant tenants. The appeal encompasses an order denying a motion for judgment notwithstanding the verdict.

In January 1965 the Lombards leased their furnished home in Fresno County to defendants, by án oral lease. Before the lease was consummated, Lombard showed the premises to his prospective tenants and while viewing the- back yard, with defendant Titus, Lombard pointed to an incinerator and said,' “This is where we bum our papers.” Shortly thereafter the. *517 lease was consummated, and the Tituses took possession while the Lombards toured Europe.

Mr. Titus burned waste in the incinerator two or three times, but Mrs. Titus used it for the first time the day of the disastrous fire, July 26, 1965, a hot, dry day. She placed some bamboo leaves and pieces of a pasteboard box in the incinerator about 2 p.m., then sprayed the sides of the incinerator and the ground around the base with water from a garden hose, and started the fire. She remained there with the water running for about 15 minutes.…