Travelers Indemnity Co. v. Titus

STONE, J. 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. After the blaze died down and the residue was smoldering, she went into the house to look after a sick child. In about 10 minutes she returned to the yard to find the fence and a tool shed attached to the garage ablaze. The fire quickly spread to the garage and home, damaging them at least to the amount stipulated as damages at the trial, $29,950.

Plaintiff argues that the judgment must be reversed because defendants were guilty of negligence as a matter of law, that there is no evidence to sustain a finding that the landlord, plaintiff’s subrogor, was guilty of contributory negligence, and that the court, in instructing the jury, used the wrong standard of care by which a landlord’s duty of due care is to be measured in a landlord-tenant relationship.

We take up, first, plaintiff’s contention that Mrs. Titus was negligent as a matter of law in starting the fire and burning at all. The provisions of section 4169 of Public Resources Code (now § 4446) forbids the burning of any flammable material in an incinerator unless the area within 10 feet of the periphery of the incinerator is maintained free and clear of all flammable material and vegetation. It also requires that the chimney or opening of an incinerator be covered with a screen constructed of nonflammable material, with no greater than a %-inch mesh. Lombard maintained the incinerator approximately 4 feet south of a redwood fence covered with vines, and 5 feet east of a tool shed attached to the garage which, in turn, was attached to the dwelling; rather than a inch mesh screen he used an old barbecue grill with parallel bars spaced about one inch apart. Manifestly, when Mrs. Titus started the fire in the incinerator under these conditions, she violated the statute in two respects. Since the statute was designed to protect against the very harm that resulted, Mrs. Titus was negligent as a matter of law. (Hanna v. Lederman, 223 Cal.App.2d 786, 792 [36 Cal.Rptr. 150]; 35 Cal.Jur.2d, Negligence, § 16, pp. 502-504.)