Bryan v. Darlington

MURRAY, Justice. This suit was instituted by Peyton Bryan and T. H. Peddi'cord against Frank Dar-lington and wife, Madge Darlington, Frank Darlington, Jr., Dorothy Darlington and Mary E. Darlington, seeking a temporary injunction and on final hearing a permanent injunction restraining defendants from operating a private children’s nursery and day school at their home, located on Lot 3, Block 16, Arcadia Village Subdivision, an addition to the City of Corpus Christi, Nueces County, Texas, designated as 226 Norton Street, on the ground that the operation of such children’s nursery and day school would violate a restriction in force and effect in Arcadia Village, reading as follows: “No store, shop or permanent office of any kind or business of any kind shall be permitted on the tract.” The trial judge, after a rather full hearing, denied the temporary injunction and plaintiffs have prosecuted this appeal. The trial judge’s fourth, fifth and sixth findings of fact are as follows: “4. Defendant Madge Darlington is a professionally trained teacher, having taught extensively in public and private schools for some thirty years. She proposes to personally conduct a private children’s nursery and day school combined on the premises above described, where she, her husband and children reside. Such children’s nursery and day school would accommodate children of from two and one-half years up to public school age and would be conducted during daylight hours. The maximum enrollment would be twenty children. The nursery school would be conducted in the dwelling and enclosed back yard. She would make charges for her services as a children’s nursery and private school for private profit. She has previously operated kindergartens and on other occasions operated nurseries, but she has not previously operated the combination of the two. She will personally supervise the children in their work and play. In addition to the nursery and day school she proposes to teach piano lessons for private profit on a limited scale. “5. Defendants’ premises are used primarily as a dwelling for the family, and will be used incidentally as a children’s nursery and day school. There will be no physical changes or alterations made in the premises which will mar their appearance or that of the neighborhood in which they are situated, nor deprive them of their general character of a private single family dwelling. “6. The evidence fails to show that plaintiffs would suffer irreparable injury and damage by the Court denying the in-junctive relief sought.” We are of the opinion that the restriction is not so broad and all inclusive as to prohibit the operation of a “children’s nursery and day school,” such as is contemplated by Mrs. Darlington, but if the restriction does prohibit the conducting of such a children’s nursery and day school, then it is void as against public policy. As was said in Clifton George Co. v. Great Southern Life Ins. Co., Tex.Civ.App., 247 S.W. 912, 914: “Any law that would tend towards the restriction of buildings for religious worship or teaching, or restrain public or private schools for education, would be frowned down alike, for they walk hand in hand, the corner stones of our American institutions, and without which no government can stand. While there is here no restraint of the former class, we simply use the two as the basic symbols illustrative of our institutions. “It is education that fits our people for self-government. It is the educated American who shall stand for his government against socialism and destroy the hydra head of all the monsters that rise up against law, order, and constituted authority. We unhesitatingly hold that such restraint upon this property must be overthrown and invalidated.” We furthermore agree with the trial judge’s finding that appellants have not shown that they will suffer irreparable injury as a result of the conducting of such a children’s school. In an appeal from an order of a trial judge refusing a temporary injunction such order should not be disturbed by us unless it is shown that in refusing the temporary injunction the trial judge abused [683] his discretion. We are here unable to say from this record that there was any such abuse of discretion. The order refusing the temporary injunction is affirmed.