(dissenting).
This is an injunction suit to enforce restrictive covenants. The petitioners orig*521inally filed seven suits and they were,-by order of the trial court, consolidated and tried as one case. Such action in consolidating the cases was over the objection of the petitioners. The facts in each case were developed in the trial. It is undisputed that each respondent was renting or had rented a room or rooms to persons not members of their family.
Petitioners contend that the sole issue is whether the renting of rooms to roomers or boarders is in violation of the covenants contained in a certain trust instrument executed in 1922, affecting the lots situated in Southampton Place Addition to the City of Houston.
This case is controlled by the cases of Pardo v. Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141, er. ref., and Rudy v. Southampton Civic Club, 271 S.W.2d 431, er. ref., n. r. e. The majority approves the Pardo case. As long as the Par-do case remains the law, the injunction granted by the court prohibiting the use of the land other than as a private residence for the members of a single family must stand.
The respondents recognized the controlling force and effect of the Pardo decision in their answer, wherein it is pleaded: “These defendants admit that the restrictions prohibit the use of the improvements on any one lot by more than one family, it being the provision in said restrictions that no duplex or apartment house should be permitted in the addition. * * They denied, however, that the restrictions provide or should be construed to provide that the renting of a room in one’s house or servant’s quarters, where it is not occupied by a family, constituted a violation of the restriction against erection of duplexes and apartment houses. They further alleged in their answer that the purpose and proper construction of such restriction against the erection of duplexes and apartments was to prohibit more than one family living on one lot.
The petitioners contend that the same basic restrictions were interpreted in the. Pardo and Rudy cases, and that the exact question presented here was decided contrary to the position taken by respondents. I agree with such contention. The majority approves the Pardo case, but seems to take the position that since the opinion does not undertake to define what is meant by the term “single family residence”, [239 S.W.2d 142] it does not follow that the Pardo case controls. The majority then proceeds to reject the Rudy case on the ground that the definition of the word “family” given in the court’s charge was too restrictive. The definition given was that the word “family” includes “parents, children, and domestic servants”. The majority says such definition is too restrictive for the reason that it would exclude a dependent mother or an invalid brother or sister.
The opinion in the Pardo case, after setting out the restrictions under considera^ tion and giving an analysis of the authorities, contains this significant language: “Under the above authorities it seems to be settled both in this state and in other jurisdictions that in order to carry out the intention of the developers of this addition, as evidenced by the restrictions above quoted, the use of said Lot 10 oi Block 45 of Southampton Place Addition must be limited to' a single family residence.” The judgment of the trial court which was expressly approved by this Court specifically restrained the defendants (same as the respondents here) from using the lot, for any purpose other than as a single-family residence. The Rudy case judgment went a step further and restrained Rudy and his wife from using their lot for the purpose of housing any other than members of defendants’ family. Of course, under the definition, such restraining order did not exclude domestic servants. The Rudy case was reviewed by this Court upon application for writ of error. Rudy’s application presented points to the effect that the trial court erred in holding the:. *522restriction prevented the use and occupancy of garage apartments except by members of a single family or domestic servants; that the trial court erred in differentiating between servants and third persons with regard to use of garage apartments, and the court erred in injecting the word “family” into, the restrictions, and in its definition of “family. Necessarily, by our action in refusing the writ of error, n. r. e., we rejected the position taken by Rudy. - No controlling effect can be given to the court’s failure to include a dependent mother or an invalid brother or sister. Srtch failure does not alter the undisputed facts in this case. The record shows that the. respondents rented a room or rooms in some cases to one roomer and in others to as many as six roomers or boarders. Some were shown to be students attending Rice Institute, others were not Rice students, and in one instance at least it was not shown what the roomer was doing. I would sustain the petitioners’ contention that as a matter of fact upon the evidence in the case, the trial court was justified in finding that each one of the defendants in this case — the defendant with one roomer and the defendant with six roomers— was violating the restriction. I would also, in view of the Pardo and Rudy cases, hold with petitioners’ contention that as a matter of law the renting to one roomer, just as the renting to six, violated the restriction. Therefore, I would uphold the injunction granted by the trial court restraining and enjoining the respondents and each of them from renting a room or rooms upon their premises, or any part thereof, and from otherwise using their premises for any purpose other than as and for a private residence for the members of a single family, including the bona fide servants, if any, engaged on the premises in the domestic service of a family until April 15, 1973. (Note: The trust agreement contains a provision that by a certain vote of the total resident owners, the trust may be extended for another 50 years). The trial court in the Pardo and Rudy cases did not enjoin “multiple housing”. They enjoin use of each lot for any purpose other than as a residence for members of a single family and its domestic servants, — so does the injunction in the present case. The question appealed in the instant case was: Did the renting of a room or rooms violate the restriction? The Court of Civil Appeals apparently did not pass upon this question, but chose to decide a different question, i. e.: Did the renting of rooms to roomers constitute “multiple housing”?
I have re'ached the conclusion that we were in error in' holding that this case must be decided just as if there were but one defendant and he were renting one spare room, even though the evidence shows that in the Couch case, Mr. Couch was renting to five men at the time of the trial and receiving a rent of $135 per month, and before the trial had rented to six men and collected rent of $150 per month. The writer also joined the majority in the conclusion that “We do not, therefore, have the question of whether the defendant who rents to six roomers is conducting a rooming house.” After further study and reflection, I have concluded that the petitioners have at all times maintained that the renting of a room to one or six roomers is not incidental to the use of the premises as a family home. On the theory that the case must be decided just as if there were but one defendant and he was renting a spare room, we held in our original opinion that the evidence in all seven cases shows as a matter of law that the renting in each case was merely incidental and not in violation of the restrictions. The legal effect of our holding is to say that the renting of a room or rooms in a private residence, which is merely incidental to its use as a family residence, does not violate a restriction held by this Court in the Pardo case to limit the use of the property to a “single family residence”. Carrying it a little further, I think we held that as a matter of law there' is no evidence that the use is not incidental in each of these cases.
*523I cannot now agree that we reached the correct conclusion. The seven cases were consolidated, but the evidence pertaining to each case was fully developed and compels the conclusion that in each case the evidence supports the judgment of the trial court that the act of each respondent in renting a room or rooms was in violation of the restrictions. Only the defensive issue of waiver was submitted to the jury. That issue was answered adversely to respondents. I agree with petitioners that as a matter of law a roomer (one or more) is not a part of a family. This conclusion is made more certain in the light of the Pardo case. The trial court rendered an errorless judgment. Even though the majority rejected the definition of “family” given in the Rudy case, that case still is authority for the proposition that the housing of persons not members of a single family is a violation of the restrictions to a single-family dwelling.
The only other issue requested was one of law and not one of fact. The respondents assigned only the point in the Court of Civil Appeals that the trial court erred in failing to submit to the jury the requested issue as to whether the restrictions promulgated for Southampton Addition prohibited residents thereof from having a roomer or roomers in their homes. Clearly, under the Pardo case, this was an issue of law.
The petitioners have at all times contended that one family and six roomers are more than just one family; that one family and one nonfamily boarder is more than one family, and constitutes a violation of the restrictions of the Southampton Addition as interpreted by this Court.
The preceding portion of this dissent was written before the majority decided to write on motion for rehearing. The Per Curiam opinion attempts to write around the Pardo and Rudy cases by advancing the idea that the case was tried upon the wrong theory. It seems to me that the case was tried properly under the only theory indicated in the two mentioned cases. By reversing and remanding for a new trial, per curiam does seem to admit that the majority was wrong when it said in its original petition: “We do not, therefore have the question of whether the defendant who rents to six roomers is conducting a rooming house. This case must be decided just as if there were but one defendant and he were renting one spare room-.” To try this case upon a new theory will be to try it Contrary to the law as announced by this Court. The opinion and judgment in the Pardo case upheld the same basic restrictions as we have in the present case. The restrictions, as construed in the Pardo case, prohibit use of the improvements on any one lot by more than one family. Now, both the original majority and the present majority, speaking through Per Curiam, advance the idea that “the spirit and reasoning of the cases generally lead to the conclusion that the renting of a room or rooms in a private residence, which is merely incidental to its use as a family residence, does not violate a restriction limiting the use of the property to a single-family residence.” In the same paragraph, the original majority states that the exact question here presented has never been “authoritatively” decided. (Emphasis added.) Surely the majority does not include the Pardo and Rudy cases in this sweeping pronouncement. Apparently, at page two of the original, the majority contradicts the above quoted statement by accepting the construction given in the Pardo case wherein it was held that lots in the addition were “restricted to the exclusive use of a residence of a single family.”
Restrictions such as we have here are not uncommon. Each purchaser bought his lot or lots with full knowledge of these restrictions. Several hundred people have invested thousands of dollars each. They relied upon such restrictions, and, above all, they relied upon the construction given the restrictions by the Supreme Court of Texas. The majority seems to realize that the decisions in the Pardo and Rudy cases are *524stare decisis, but apparently desire to soften up the rule by now advancing a theory that the injunction is too restrictive in that it would “exclude a dependent or an invalid brother or sister.” I respectfully submit that the injunction does not exclude such persons from occupying the home. It is no more restrictive than the injunction in the Rudy case. See Rudy v. Southampton Civic Club, supra.
The Per Curiam leaves the trial court in a state of uncertainty as to the accurate standard and quality of evidence that could be introduced to bring about a different result in any of these seven cases. But, suppose the trial court decides that the majority means to say that if the evidence shows that only one roomer (Rice student or otherwise) has been added to the family in violation of Pardo and Rudy, that such evidence would be of sufficient proba- ■ iive force to warrant a conclusion that such relationship was merely incidental, then the •court would proceed to dissolve the injunction. Such action, in my opinion, would not relieve Rudy from the penalties of contempt should he hereafter decide to rent to one roomer, and would not be in keeping with the law as announced in either th€ Pardo or Rudy cases.
The Per Curiam in remanding this case for a new trial as to all seven cases completely ignores the definition of a single-family residence as the same has been recognized by the courts of this state in construing restrictions. The original majority has elected to quote a part of the definition of “family”, reading as follows: “The body of persons who live in one house, and under one head or manager; a household, including parents, children, and servants, and as the case may be, lodgers or boarders; * * *.” The majority omits that portion of the definition which immediately follows the above semicolon. The remainder of the definition reads: “specif., for census purposes, any group of persons sharing a common dwelling and table, between and including the extremes of a single person living alone, and the inmates of a hotel or prison, poorhouse, asylum, or other institution.” The word “family” has been construed by the courts not in connection with the taking of the National census every ten years, but in connection with the construction of contracts such as we have here. The question being: What was the intention of the parties when the restrictions were adopted, and what did the parties deem the word “family” to mean? I agree ' with the petitioners that the definitions of “family” used by the Texas Courts are:
“ * * * a household, composed of parents and children, or other relatives, or domestics and servants; in short, every collective body of persons living within the same curtilage, subsisting in common, directing their attention to a common object — the promotion of their mutual interest and social happiness.” Howard v. Marshall, 1878, 48 Tex. 471, 478, quoting Wilson v. Cochran, 31 Tex. [677] 680.
“A mere aggregation of individuals under one common roof or within the same curtilage, although ‘devoting their attention to a common object, the promotion of their mutual interests and social happiness’ — as the inmates of a boarding-house or persons employed in the capacity of servants, does not, of itself, constitute a family:
“We deduce from the authorities the following general rules to determine when the relation of family, as contemplated by law exists:
“1. It is one of social status, not of mere contract.
“2. Legal or moral obligation on the head to support the other members.
“3. Corresponding state of dependence on the part of the other members for this support. Roco v. Green, 50 Tex. 483, 490 (1878), quoted in Stout v. Anthony, [Tex.Civ.App.] 254 S.W.2d 879 (1952), error refused.”
*525No Texas case has ever held that a lodger is a member of the family occupying the house where he lodges. The undisputed evidence shows that the roomers (whether one or six) were not members of respondents’ families. The fact that persons live under the same roof does not make them members of a family. The addition of a roomer, as was done in these cases, takes the residence out of the class of a single-family residence. The renting to one or six roomers puts each respondent in these cases in the category of being an operator of a rooming or boarding house. Therefore, it is meaningless to say as the Per Curiam does: “If the evidence establishes as a matter of law, or if the trial court finds as a fact on conflicting evidence, or as a reasonable inference from the evidence that a particular defendant is operating a rooming or boarding house on his premises as a business, * * * that activity should be enjoined.” That is exactly the thing that the present injunction enjoins. The trial court proceeded on the right theory in construing the former decision to mean that the use of the lot or lots was limited to that of a residence for a single family. In spite of the decisions holding to the contrary, the Per Curiam opinion leaves it open for the trial court upon another trial to hold that the housing of a family, plus one or six persons not members thereof, does not violate the limitation to use by a single family. The injunction now in force is warranted by the evidence and the authorities. There is nothing in the injunction which would exclude a dependent mother or an invalid brother or sister. It seems to me that such persons would be a part of the family. Of course, if there should be a case in the future where the owner of the lot would want to collect rent from his dependent mother or an invalid brother or sister, then by all means the injunction should be modified so as to exclude such person from the injunction. I do not believe that the exclusion of such persons or other members of a family from the force of the injunction should be extended to include roomers and boarders not related to the respondents.
Conceivably, there could be other factual situations (not involved here) which would not be in violation of the restrictions. However, such matters can be considered when and if they occur. I am quite certain that the true meaning of the restrictions would never be construed to prohibit a single family from going to the aid of a friend or relative in need of shelter. Such a situation could not possibly be considered a business.
The fact that property rights will be materially affected if the majority view is followed, has convinced me that I was in error in joining the majority on original hearing.
The judgment of the Court of Civil Appeals should be reversed and that of the trial court affirmed.