On Appellee’s Motion for Rehearing.
On reconsideration, it is determined that the judgment of February 16th last, reversing and remanding this cause for the inquiry by appellee’s counsel on cross-examination of the witness Stokes as to whether the appellant Union “was the same one that objected to the army band playing in Houston the other day”, was error; the original opinion recited that the trial court erred in overruling appellants’ “motion to discharge the jury and declare a mistrial—duly made and adversely acted upon before any judgment in the case was entered—”, whereas it should have described the motion as one “to set aside the jury’s verdict and declare a mistrial”, because that motion, while “duly made and adversely acted upon before any judgment in the case was entered”, as before stated was not presented until some days after the trial had ended and the jury discharged.
That motion was made pursuant to R.S. Art. 2234, which, among other things, requires that the court shall hear evidence as to any allegedly improper communication or testimony put before the jury, “and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material”. This statute is to be strictly construed (Parks v. Missouri, K. & T. R. Co., Tex.Civ.App., 19 S.W.2d 373), and the communication or testimony injected must be shown to have been material to the subject-matter of the cause. International-G. N. R. Co. v. Cooper, Tex.Com.App., 1 S.W.2d 578.
This record affirmatively shows, (1) that this motion as just indicated, was not one to discharge the jury, made at the time the cross-examination occurred, but' was one to set aside the verdict eight days after the jury’s discharge, and (2) that no evidence whatever was heard upon the matter—just the injection of the inquiry, the objection to it as being “wholly immaterial and absolutely prejudicial” by opposing counsel, and the immediate instruction by the court to the jury not to consider the question in reaching its verdict.
On reflection, it occurs to this court that the mere asking of what was obviously an' immaterial and improper question, -as' against the prompt and positive direction of the court that it could not be considered, and the acquiescence of both sides in that disposition of the matter, should not now be held to have tainted the verdict and judgment; it should now be presumed, in the complete absence of any affirmative indication in the record to the contrary,' that the jury followed the court’s instruction by not considering the inquiry at all.
The other objections presented by the appellants to the judgment are not deemed to have been well taken; the jury’s verdict, in response to which the $261.97 recovery was awarded, has ample support in the testimony—indeed, such findings were not, excepted to.
Moreover, under the facts so found, it is thought the further establishment of the constitutional and statutory liens in the appellee’s favor was not error, under these authorities: Constitution of Texas, Art. 16, § 37, Vernon’s Ann.St.; R.C.S. of Texas 1925, Arts. 5452, 5453 (Vernon’s Ann.Civ.St. art. 5453), 5455; Sammons v. Local No. 65, etc., Tex.Civ.App., 106 S.W.2d 785, and authorities cited; Mood v. Methodist Episcopal Church South, of Cisco, Tex.Com.App., 300 S.W. 30.
Sinte these conclusions determine the merits of the appeal, further discussion will be forborne; they require that ap-pellee’s motion for a rehearing be granted, that this court’s former reversal be set aside, and that the judgment of the trial court be in all things affirmed; it will be so ordered.
Rehearing granted, former reversal set aside, and trial court’s judgment affirmed;