(dissenting).
I respectfully dissent. The majority opinion is based upon the premise that this temporary injunction violates defendants’ right of free speech and free communications guaranteed by the First Amendment to the Constitution of the United States and Section 8 of Article I of the Constitution of the State of Texas. The majority rely on Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920), in support of their position in which the Supreme Court first indicates that a person is free to say anything he *306wants to about another person and the remedy is not the denial of the right to speak, but appropriate penalties for what is wrongfully spoken. However, the last paragraph of the Tucker opinion makes it clear that injunctive relief is available under certain circumstances, such paragraph reading as follows:
“Equity will protect the exercise of natural and contractual rights from interference by attempts at intimidation or coercion. Verbal or written threats may assume that character. When they do, they amount to conduct, or threatened conduct, and for that reason may properly be restrained. Cases of that sort, or of analogous nature, are not to be confounded with this one.” (220 S.W. at p. 76) [emphasis supplied]
The Tucker opinion is some fifty years old at the time of writing this opinion, but it has been consistently followed by the Supreme Court of this state to this date. A well written opinion in Cain, Brogden & Cain, Inc. v. Local Union No. 47, Etc., 155 Tex. 304, 285 S.W.2d 942 (1956), reviews both the federal and state cases on this point and relates the proposition, in the face of the same contention made in the present case, as follows:
“It is now well settled that peaceful picketing loses its protection under the constitutional guaranty of free speech if one of its purposes is contrary to public policy.” (285 S.W.2d at p. 946) [emphasis by the court]
The law stated in Tucker is reaffirmed by the Supreme Court in Dallas General Drivers, Etc. v. Wamix, Inc., of Dallas, 156 Tex. 408, 295 S.W.2d 873, 879 (1956), as follows:
“In Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, this Court committed itself emphatically to the proposition that the right of one to speak ill of another is protected by the Bill of Rights, Sec. 8 of Article I of the State Constitution, and that a court has no power to control by injunction what one person says of another, even in a labor dispute, unless there be evidence that language will be used which is intimidating and coercive in character." [emphasis supplied]
I have concluded that defendants’ actions were both unlawful and contrary to public policy and therefore lost their protection under the constitutional guaranty of free speech. Article 5154f, V.A.C.S., provides among other things that it is unlawful for a labor union to engage in secondary picketing or a secondary boycott. Those terms are defined in Article 5154f, Sec. 2 d and e as follows:
“d. The term ‘secondary picketing’ shall mean the act of establishing a picket or pickets at or near the premises of any employer where no labor dispute, as that term is defined in this Act, exists between such employer and. his employees.
“e. The term ‘secondary boycott’ shall include any combination, plan, agreement or compact entered into or any concerted action by two or more persons to cause injury or damages to any person, firm or corporation for whom they are not employees, by
“(1) Withholding patronage, labor or other beneficial business intercourse from such person, firm or corporation; or
“(2) Picketing such person, firm or corporation; or
“(3) Refusing to handle, install, use or work on the equipment or supplies of such person, firm or corporation; or
“(4) Instigating or fomenting a strike against such person, firm or corporation; or
“(5) Interfering with or attempting to prevent the free flow of commerce; or
“(6) By any other means causing or attempting to cause an employer with whom they have a labor dispute to inflict any damage or injury to an employer who is not a party to such labor dispute.”
*307In the Cain Case, supra, the court discussed Carpenters and Joiners Union, Etc. v. Ritter’s Cafe, 149 S.W.2d 694 (Tex.Civ.App., Galveston, 1941, error ref.), in which the union picketed Ritter’s Cafe even though their labor dispute involved a construction job with Ritter some distance away, resulting in the affirmation of a judgment granting a permanent injunction. Also, in the Cain Case, supra, the court discussed Borden Co. v. Local No. 133, Etc., 152 S.W.2d 828 (Tex.Civ.App., Galveston, 1941, error ref.), in which the defendant union had a labor dispute with Borden Company and picketed the place of business of a retailer who sold Borden’s milk. The Supreme Court of Texas refused a writ of error in the Borden Case. Then the Supreme Court made this pronouncement in the Cain Case, to-wit:
“It may be said that the foregoing decisions rest primarily on the ground that the labor practices enjoined were in violation of the public policy of this state, as expressed in the statutes, to suppress trusts and conspiracies in restraint of trade. It may also be said, however, that they rest, in part at least, on the ground that the practices enjoined were violative of the public policy of this state against secondary boycotts and picketing of an employer with whom no dispute existed in order to force him to join with the union in applying coercive pressure on an independent employer with whom a dispute did exist, or, alternatively, to breach a contract or break off business relations with such employer.” (285 S.W.2d at p. 948-949)
The Supreme Court of Texas in the Wamix Case, supra, after quoting Judge Learned Hand as follows:
“Judge Learned Hand has defined a secondary boycott in these words: ‘The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees’ demands.’ International Brotherhood [of Electrical Workers], etc. v. N.L.R.B., 2 Cir., 181 F.2d 34, 37.” (295 S.W.2d at p. 882)
then came to these conclusions:
“From the foregoing discussion we conclude that while secondary picketing as defined in Cain, Brogden & Cain v. Local Union No. 47, etc., supra, is contrary to the public policy of this state and subject to judicial restraint, not all picketing which has a secondary effect will be regarded as proscribed by the public policy; that two important factors in determining whether picketing in a particular case because of its secondary effect on neutral employers is proscribed by the public policy are: (a) the good faith intent of the union or striking employees in picketing a secondary situs to exert pressure only on the primary employer, to which effort the effect on neutral employers is purely incidental, and (b) the balancing of relative rights of all affected parties against the harm which would result to the other parties and to the public from permitting or restraining the picketing. In a hearing on a temporary injunction these matters will ordinarily address themselves to the sound discretion of the trial judge and only rarely may the issue be decided as a law question. If the Court concludes, upon evidence of probative force, that the real purpose of picketing at a secondary situs is to exert economic pressure on a neutral and it has that effect there will be no need to consider the second factor.” (285 S.W.2d at p. 884)
Applying the rules laid down in the Wamix Case to the factual situation before us, we must consider the good faith intent of the union in handbilling the cafeteria and restaurant customers in exerting pressure upon the owners of such cafeterias and restaurants to influence the plaintiff in its dealings with the union, and we must balance the relative rights of all of the parties affected. I have concluded defend*308ants’ actions in this case are contrary to public policy.
It should also be considered that this is an appeal from an order granting- a temporary injunction to preserve the status quo pending a final hearing on a permanent injunction. Under such circumstances, it is clear that the trial court’s judgment will be reversed only where the issuance of the writ was a clear abuse of discretion. Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952). Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). In my opinion, the trial court did not abuse its discretion in granting the temporary injunction.
STEPHENSON, J., dissented to denial of rehearing.