Mission Independent School Dist v. Diserens, 11481.

• Decision Date: 07 February 1945
• Docket Number: No. 11481.,11481.
• Citation: 186 S.W.2d 108
• Parties: MISSION INDEPENDENT SCHOOL DIST. v. DISERENS.
• Court: Texas Court of Appeals

186 S.W.2d 108

MISSION INDEPENDENT SCHOOL DIST. v. DISERENS.

No. 11481.

Court of Civil Appeals of Texas. San Antonio.

February 7, 1945.

Rehearing Denied March 7, 1945.

Appeal from District Court, Ninety-Third District, Hidalgo County; W. R. Blalock, Judge.

Suit by the Mission Independent School District against Ethel Diserens to enjoin defendant from teaching in the Cisco Independent School District in violation of a negative covenant in her contract of employment as a teacher in plaintiff's public school system. From a judgment refusing an injunction and dismissing the cause, plaintiff appeals.

Affirmed.

H. H. Rankin, Jr., of Edinburg, and Black, Graves & Stayton, of Austin, for appellant.

Kelley & Looney and L. Hamilton Lowe, all of Edinburg, for appellee.

MURRAY, Justice.

This suit was instituted by Mission Independent School District against Ethel Diserens seeking an order of the 92d District Court of Hidalgo County enjoining defendant from teaching music in the Cisco Independent School District at Cisco, Eastland County, Texas.

The trial court refused the injunction and dismissed the cause.

Mission Independent School District has prosecuted this appeal.

The facts are undisputed. For the purpose of this suit the defendant admitted the following allegations of plaintiff's petition:

"1. On or about May 1, 1944, plaintiff, Mission Independent School District, of Hidalgo County, Texas, entered into a contract in writing with defendant employing defendant as a teacher in plaintiff's public school system for the school year 1944-1945; a copy of the contract is attached to the petition, marked Exhibit `A', and made a part thereof.

"2. The contract by its terms was performable in Mission, Hidalgo County, Texas, where the agreed compensation was to be paid.

"3. Defendant is a musician and teacher of extraordinary and unique talents and abilities.

"4. Defendant, in accordance with the terms of said contract, reported to and for work at the public school system of plaintiff on the 5th day of September, A. D.1944, and on said day and date commenced the performance of said contract. Thereafter, later in the day of the 5th day of September, A. D. 1944, the defendant advised plaintiff that defendant desired to be released from said contract. Whereupon plaintiff advised defendant that it would not release defendant from said contract. Defendant left Mission, Hidalgo County, Texas, on or about the 8th day of September, A. D. 1944, and has failed and refused and still fails and refuses to carry out said contract or any part or covenant thereof.

"5. Said contract provides among other things that defendant will not engage in the profession of school teaching anywhere in the State of Texas during the life of said contract. And, in violation of the terms of said covenant defendant began and commenced to teach music and direct and teach band in the public schools of the Cisco Independent School District at Cisco, Eastland County, Texas, on or about the 11th day of September, A. D. 1944, and is now teaching said subject in the State of Texas in violation of said above covenant.

"6. Plaintiff is and has been willing at all times to offer defendant employment under the terms of said contract and here now tenders defendant the full rights and benefits of employment under said contract.

"7. Due to the war and the manpower shortage in the United States, it is difficult to obtain a music teacher and band director with the qualifications of defendant."

Appellant admits that it is not entitled to nor is it asking an injunction requiring appellee to perform the affirmative covenant in the contract to teach in the Mission School, but contends that it is entitled to an injunction prohibiting appellee from violating the negative covenant in her contract not to teach school in any other school in the State of Texas, and particularly in the Cisco School where she is now teaching. Appellant says that it is entitled to have such injunction as an inducement to appellee to perform the affirmative covenant in the contract to teach in the Mission School.

This is a case of first impression in this State and as far as we know there is no reported case exactly on all fours with this case; that is, where a teacher in a public school was involved.

We have been cited to Lumley v. Wagner, an early English case, 1852; Keith v. Kellerman, C.C., 169 F. 196; McCaull v. Braham, C.C., 16 F. 37; Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A. 227, 90 Am.St.Rep. 627; Tribune Ass'n v. Simonds, N.J.Ch., 104 A. 386.

In the Lumley case a very noted singer was enjoined from performing in other theatres where she had contracted not to do so during the existence of her contract.

In the Kellerman case, Annette Kellerman, America's first bathing beauty, was enjoined from performing for any one else during the time she had contracted to perform only for Keith.

In the Lajoie case "Nap" Lajoie, a very popular baseball player, was enjoined from playing with a rival club during the time he had contracted only to play with the Philadelphia Ball Club.

In the Simonds case Frank H. Simonds, a very famous war news writer during World War I, was enjoined from writing for other publications during the time he had contracted to write only for the New York Tribune.

However, it is apparent that in each of these cases the complaining party was not only injured by the failure of the defendant to keep his or her affirmative covenant, but was also injured directly by the breach of the negative covenant.

In the present case it is readily apparent that appellant is not injured in any way by appellee's breach of her negative covenant. In other words, the Mission School is not injured by appellee's teaching in the Cisco School. The only benefit the Mission School could receive if the injunction prayed for should be granted would be the possibility that appellee might be induced thereby to comply with her contract to teach in the Mission School.

We are impressed with the contention of appellee that such injunction should not be granted unless the breach of the negative covenant alone and apart from the breach of the affirmative covenant work a direct injury to the employer.

In the Restatement of the Law by the American Law Institute, Volume II of Contracts, Section 379, p. 702, it is stated:

"§...