This appeal is prosecuted from a judgment appellees, Orville Sowers and wife, Virginia, recovered against the Texas Company for $1,500 damages alleged to have
The Company owned a lot at the corner of Ft. Thomas and Garrison Avenues in Ft. Thomas, and apрellees owned their home which adjoins the Company’s property on Garrison Avenue, but on lower ground. The Company started constructing a filling station on its lot in the spring of 1949, and on May 1 of that year it leased the station to Pitts, who took possession on June 28. The lease contained a provision that the lessee was to keeр the premises and equipment in good repair during the term of the lease. On June 30, the underground tanks were filled with gasоline. Evidently, these underground tanks, pipes and pump connections began to leak soon after Pitts started оperating the station, because by the middle of July he discovered a shortage in his gasoline. He notified the company a time or two and finally in September 1949, it paid Pitts $153.47 to reimburse him for some 800 gallons which had leaked from the underground tanks before the Company found the leaks and repaired them. On November 30, 1949, the Company and Pitts mutually tеrminated their lease contract.
Sometime prior to November 19, 1949, appellees began to smell gаs in their home. TheyJcalled the gas company, thinking the fumes came from their furnace. The gas company fоund the fumes came from gasoline, were explosive and dense enough to burn down the house. The fire department was then called to the home of appellees. After discussing the situation with the firemen, appellees moved from their home about November 19, and remained away until early in 1950. It is evident that gasoline leaked frоm the underground tanks on the Company’s property and saturated the earth around and under appellees’ home. The Company’s maintenance man dug a hole of trench along the foundation of ap-pellеes’ house, which excavation would fill with gasoline and water from time to time. Finally, by February' 21, 1950, there was no more еvidence of gasoline in this excavation.
Under the facts presented in this record the Company is not' entitlеd to a directed verdict. A landlord who puts a tenant in possession of premises which the landlord knows, or by the еxercise of reasonable care should have known, were in such condition as to involve an unreasonable risk of injury to the property of others outside the land, is subject to the same liability as though he had remained in possession, notwithstanding a covenant in the lease which required the tenant to keep the property in repair. 52 C.J.S., Landlord and Tenant, § 432, pp. 1-09, 110; Restatement of the Law of Torts, § 837, pp. 293 et seq.; Mitchell’s Adm’r v. Brady,
The casеs cited by the Company such as Indian Refining Co. v. Berry,
’ There is merit in the Company’s contention that any damages appellees might have suffered are temporary and not permanent. While Mr. Sowers testified that gasolinе fumes evaporate slowly from clay soil (the character of soil which surrounded his home), yet he did not say such fumes would permanently remain in the
It is obvious that the court- erred when it gave an instruction allowing- the jury to return a verdict for permanent injury to аppellees’ home, which the jury in this instance did. On another trial, should the evidence be practically the same, the court will instruct on the measure of damages substantially as follows: “If the jury find for plaintiffs, you will award them such a sum in dаmages as you may believe from the evidence will reasonably compensate them for the diminution, if any, in the value of the use of their property during the continuance of the nuisance, not to exceed $1000, the amount for which plaintiffs sued.” No instruction will be given on permanent damages since the evidence' shows none.
The judgment is reversed for proceedings consistent with this opinion.