The opinion of the Court was delivered by
Mr. Justice Stabler.
The statement of fact in this case follows more or less closely the well-prepared statement contained in the printed argument of appellant’s counsel.
The case involves an appeal from a judgment based on a verdict of $15,000 against the appellants, which grew out of a suit for damage to real property of the respondent instituted by him on July 3, 1925, in the Court of- Common Pleas for Spartanburg County.
The respondent, together with his brother, his son, and his daughter, executed an option giving the Southern Railway Company the right to purchase, for the sum of $25,000, certain property for use as a right of way in constructing a new belt line, the option being dated March 19, 1924, and running for 60 days, but being thereafter extended to June 5, 1924. The option refers to the lands as “more particularly shown on plat of Southern Railway right of way made February 4, 1924, and on file in the office of the Chamber of Commerce of Spartanburg, S. C.,” and contains the following provision:
“Said consideration is to be in full settlement of all damages to our property as well as for the purchase price thereof.”
Respondent and his brother, on May 31, 1924, executed a deed of conveyance to Southern Railway-Carolina Division, conveying for railroad purposes the lands owned by
them and described in the option, the consideration paid being $11,000. The deed contains the following provisions:
“It is understood by the grantors that the land herein-before described and hereby conveyed will be used by the grantee in the construction, maintenance, and operation of ■a railroad, and the grantors, for themselves, their heirs and personal representatives further agree that the consideration hereinbefore recited and paid by the grantee includes, not only the value of the said land hereby conveyed, but also all and any incidental or consequential damages accruing to other and adjacent lands of the grantors from or on -account of construction and maintenance of said railroad upon the land hereinbefore described and hereby conveyed.”
The right of way of the proposed belt line crossed in a general direction from east to west underneath the public highway.known as state highway No. 8, which is an extension of East Main Street of the City of Spartanburg, although the property in controversy in this case lies outside the city limits. Respondent was one of the citizens, of Spartanburg to guarantee $250,000 to aid in the construction of the belt line.
Respondent’s brother subsequently died, leaving to him by will the remaining half interest in the balance of the tract of land out of which the right of way was sold. The land lies on both sides of the highway, having a total frontage thereon of about 770 feet.
On December 9, 1924, on petition of the Southern Railway Company, an order was obtained from the state highway commission permitting that company to construct at its own expense an underpass for the belt line under state highway No. 8, and allowing it to- raise the grade of the highway sufficiently to carry traffic over a concrete bridge to be constructed on the highway; the order stating that “Southern Railway Company hereby assumes all respon
sibility for any damage that may arise from the change or elevation of the grade of said highway.”
Where respondent’s property fronted on the highway, prior to the construction of the underpass, the highway was already at a grade above the level of respondent’s property, and in preparing the approaches to the bridge appellants increased this fill several feet.
For alleged damage to his remaining property fronting on the highway, due to such raising of the grade, respondent brought this suit. At the close of the testimony appellants moved ^pr a directed verdict upon the ground that all the elements of damage claimed by the respondent are covered by the release which he executed to Southern Railway-Carolina Division, in his deed of May 31, 1924. This motion was denied, and the case submitted to the jury, who rendered a verdict of $15,000 in favor of the plaintiff. A motion for a new trial was overruled, and judgment on the verdict was entered against appellants.
The matter comes before this Court upon thirteen exceptions, which will be considered in regular order.
First exception:
“The Court erred in allowing respondent to testify as to statements made by Major Bernard; the error being that there was no evidence of his having any authority ■ to bind appellants by making any statement as to the raising of the highway.”
Respondent testified that Major Bernard was a representative of the railway company, and was the first man who came to see him about procuring the right of way for the company. But it does not appear in the record that respondent testified to any statement made by Major Bernard with reference to the raising of the grade. The testimony as to what Major Bernard actually said was harmless. There was no error.
Second exception:
“The Court erred in allowing the respondent to testify as to conversation with and statements made by Major Bernard and Mr. Pearce Horne regarding the raising of the highway; the error being that the evidence shows that these conversations and statements were had and made several months after the deed from respondent to appellants dated May 31, 1924, and were therefore incompetent.”
We have already discussed the testimony as to Major Bernard’s statements. When the respondent was on the stand, he related a short conversation, which, after the execution of the deed, he had with Mr. Horne, a representative of the railroad company, with reference to the damage which respondent claimed was being done to his property by the raising of the grade of the highway. The record does not show that there was any objection to the admission of the testimony, and the question, raised here by exception for the first time, is not properly before this Court. But, even if the testimony had been objected to, its admission was harmless, as Mr. Horne merely said, as disclosed by the record, that the Southern Railway was not interested in the fill. This statement could have had no effect other than to deny the railroad’s liability, which position the railroad takes by its answer in this suit, and still maintains.
Third exception:
“The Court erred in allowing respondent, A. R. White, and the witness, H. B. Stribling, to testify as to a bump in the highway on the west, or city side, of the bridge, and in refusing the motions to strike out the same; the error being that such evidence related to that portion of the highway across the railroad, beyond respondent’s property, and is not within the compass of the damages sued for in the complaint.”
While the testimony shows that the “bump” in the highway is beyond respondent’s property, it also shows that the bridge over which the highway passed and the approach to which is involved in this action was located on the “bump,” and there was no error in admitting the testimony, in order to show, as stated by the trial Judge, general conditions relevant to the whole situation.
Fourth exception:
“The Court erred in allowing respondent to testify what happened before Supervisor Vernon, and that Supervisor Vernon refused to give appellants permission to ■cross highway No. 8; the error being that the supervisor of Spartanburg County had no jurisdiction in the premises, and whatever he did could have no bearing on respondent’s •cause of action.”
When the respondent offered testimony as to a conference with the County Supervisor, appellants’ counsel objected to the testimony on the ground that the respondent had already proved that the County, after the respondent protested, tore down the fill, and that subsequently the Southern Railway rebuilt it, but the Court overruled the objection. When the respondent was asked whether the supervisor gave the Southern Railway permission to cross highway No. 8, appellants’ counsel objected on the ground that the railway company was not represented at the conference, but the Court allowed respondent to testify that the supervisor did not give such permission. No objection to the ■testimony was made on the ground that the supervisor had no jurisdiction in the matter; this objection being raised here for the first time by exception. It is a well-established principle that a ground of objection not ruled upon by the presiding Judge cannot be urged in this Court.
Allen v. Cooley,
53 S. C., 77; 30 S. E., 721;
Norris v. Clinkscales,
59 S. C., 232; 37 S. E., 821;
Colvin v. Oil Co.,
66 S. C., 61; 44 S. E. 380;
General Electric Co. v. Blacksburg Land
& Improvement Co.,
46 S. C.,
75;
24 S. E., 43;
Jones v. Devereaux,
90 S. C., 513; 73 S. E., 1027;
Smith v. Union Buffalo Mills Co.,
100 S. C., 120; 84 S. E., 422. But, even if the testimony had been properly objected to and its admission erroneous it was not prejudicial, since the state highway commission, the body having authority in the matter, later granted the appellants permission to raise the highway, and this action is brought for damages alleged to have been suffered from the actual raising of the highway in accordance with such permission.
Fifth exception:
“The Court erred in allowing respondent to testify in reply that, if he had seen the map' on file in the Chamber of Commerce, he would not have known anything about the elevation of the bridge; the error being that, after he had signed the option, of which the map was a part, he was bound by whatever it disclosed.”
When the testimony involved in this exception was offered at the trial of the case, appellants’ counsel made a general objection without stating any grounds therefor.' This objection, therefore, is not properly before this Court, and the- exception cannot be considered.
State v. Rucker,
86 S. C., 66; 68 S. E., 133;
State v. Bigham,
119 S. C., 368; 112 S. E., 332;
State v. Holley,
136 S. C., 68; 134 S. E., 213, and numerous other cases.
Sixth exception:
“The presiding Judge erred in refusing to direct a verdict in behalf of the appellants upon the following grounds: Because all the elements of damage claimed by respondent in this case are covered by the release which he executed to appellant Southern Railway-Carolina Division in his deed to it dated May 31, 1924; and the evidence shows that the respondent has received payment for all such damages from the appellant Southern Railway-Carolina Division, and did release the same to said company; the error
being that the release as pleaded in the answer, and the release as described in the option, introduced in evidence, is a complete bar to this action.”
This exception involves the construction of the release contained in respondent’s deed of May 31, 1924, and raises the most important point of the appeal.
In his argument on this exception appellants’ counsel contended that, as a matter of law, under the facts of the case, appellants are not liable to the respondent for any damages arising from the change of grade of the highway. This question was not raised in any form in the trial Court, and cannot-be raised for the first time on appeal.
Hicks v. Railway,
63 S. C., 559; 41 S. E., 753;
Rhode v. Tuten,
34 S. C., 496; 13 S. E., 676. But, even if the point had been made in the lower Court it could not be sustained.
The appellants cite Article 1 of Section 17 of the State Constitution as follows:
“Private property shall not be taken * * * for public use without just compensation being first made therefor,”
—note the omission of a similar provision for compensation when property is “damaged” or “injured” for public use; contend that under such provision a change of grade of a public highway or street by a municipality, or a state or subdivision thereof, does not constitute a
taking
of private property, and hence whatever injury the abutting property owners suffer is
damnum absque injuria;
cite the case of
Garraux v. Greenville,
53 S. C., 575; 31 S. E., 597, in support of their position; and suggest that, where a railroad undertakes to change the grade of an existing street or highway for its own benefit under permission of a State or municipality, the immunity from damages should be extended to the railroad.
The Garraux case involved, as indicated, the change of the grade of a street by a municipality — not by a railroad
—and the appellants frankly recognize the distinction between cases of that kind and those cases in which the change of grade is made by, or for the benefit of, a railroad. In so far as the latter class of cases is concerned, abutting property owners are entitled to compensation for resulting injuries. Nor does the fact that the change in the grade of the highway is made with the consent of the municipality or State relieve the railroad company from liability for injuries that may arise from such change.
Coyne v. Memphis,
118 Tenn., 651; 102 S. W., 355;
Dana v. Rock Creek Railway Co., 7
App. D. C., 482;
Penn. Co. v. Stanley,
10 Ind. App., 421; 37 N. E., 288; 38 N. E., 421;
McNulta v. Ralston,
5 Ohio C. C. 330; 3 Ohio C. D., 16;
Jersey City v. Central Railway Co.,
40 N. J. Eq., 417; 2 A., 262;
L. & N. Railway Co. v. Finley,
86 Ky., 294; 5 S. W., 753;
Pittsburg, C. C. & St. L. Railway Co. v. Atkinson,
51 Ind. App., 315; 97 N. E., 353;
Chicago, I. & L. Railway Co. v. Johnson,
45 Ind. App., 162; 90 N. E., 507;
Smith v. Railway Co.,
181 N. Y„ 132; 73 N. E., 679; 20 C. J., 699, and cases cited in note 86; 22 R. C. L., 897;
Kaufman v. Tacoma, O. & G. Harbor Railway Co.,
11 Wash., 632; 40 P., 137;
Burritt v. New Haven,
42 Conn., 174;
Walters v. B. & O. Railway Co.,
120 Md., 664; 88 A., 47; 46 L. R. A. (N. S.), 1128;
Baltimore, City of, v. Kahl,
124 Md., 299; 92 A., 770;
Atlantic & B. Railway Co. v. McKnight,
125 Ga., 328; 54 S. E., 148;
Railway Co. v. Crabtree, 2
Willson, Civ. Cas. Ct. App. (Tex.), § 662.
The appellants concede that the- authorities apparently hold that, if the change of grade is made for the exclusive benefit of the railroad, it is liable for any resulting damage to abutting property owners; but make a distinction between an interference with property which amounts
to
a taking thereof and an interference which amounts to mere inconvenience, and contend that, where mere inconvenience results, the railroad is not liable and that such is the case here.
The word “taken” in the constitutional provision cited is not limited in its meaning and application to cases in which .there is an actual physical seizure and holding of property, but is broad enough to include cases in which the access to abbutting premises is obstructed by the change of grade of a highway or there is such physical injury to property as results in destruction or substantial impairments of its usefulness. See 20 C. J. 697, and the following cases therein cited:
Nevins v. Peoria,
41 Ill., 502; 89 Am. Dec., 392;
Tinker v. Rockford,
36 Ill. App., 460;
Hendershott v. Ottumwa,
46 Iowa, 658; 26 Am. Rep., 182;
Offutt v. Montgomery County,
94 Md., 115; 50 A., 419;
Vanderlip v. Grand Rapids,
73 Mich., 522; 41 N. W., 677; 3 L. R. A., 247; 16 Am. St. Rep., 597;
Broadwell v. Kansas,
75 Mo., 213; 42 Am Rep., 406;
Mosier v. Oregon Nav. Co.,
39 Or., 256; 64 P., 453; 87 Am. St. Rep., 652;
Stearns v. Richmond,
88 Va., 992; 14 S. E., 847; 29 Am. St. Rep., 758;
Kincaid v. Seattle,
74 Wash., 617; 134 P., 504; 135 P., 820;
Damkoehler v. Milwaukee,
124 Wis., 144; 101 N. W., 706;
Porbes v. Orange,
85 Conn., 255; 82 A., 559;
Walters v. Baltimore, etc., R. Co.,
120 Md., 644; 88 A., 47; 46 L. R. A. (N. S.), 1128;
Coyne v. Memphis,
118 Tenn., 651; 102 S. W., 355;
Hamilton County v. Rape,
101 Tenn., 222; 47 S. W., 416.
This question is settled in this State by the cases of
South Bound Railway v. Burton,
67 S. C., 515; 46 S. E., 340, and
Wilson v. Greenville County,
110 S. C., 321; 96 S. E., 301.
In the
Burton case
the Court said:
“Hence the building and operation of a railroad through a street cannot be regarded such a street use as to require the abutting land owner to submit to the total or partial destruction of the value of ¡his property without compensation.
Causing such depreciation is clearly destroying or taking property.
Property is not only ownership of particular lands or chattels, but it embraces the value they have by reason of
their legal relations to all other things. * * * An abutting land owner has a special property in the benefits derived .from the street on which his land is situated, by reason of its relation to the street, which differs in kind and degree from the interest of the municipal public, and the destruction or any impairment of these benefits for other than street purposes, which materially lessen its. value, is
taking private property.
This view seems clearly correct in principle, and we think it is supported by the great weight of authority
even in those states where, as in this State, the constitutional and Statute ■law do not provide for
compensa4
tion for damage to property when taken for a public purpose. Wilkins v. Gaffney,
54 S. C., 199; 32 S. E., 299;
Abendroth v.
[Manhattan]
R. Co.,
[122 N. Y., 1; 25 N. E., 496], 11 L. R. A., 634 [19 Am. St. Rep., 461];
Story v. R. Co.,
90 N. Y., 122 [43 Am. Rep., 146];
White v. [Northwestern N. C., R. R.,
[113 N. C., 610] [18 S. E., 330], 22 L. R. A., 627 [37 Am. St. Rep., 639];
R. R. Co. v. Steinger
[Steiner] 44 Ga., 546; Elliott on Roads and Streets, 528; 1 Lewis on Eminent Domain, 240.”
In the
Wilson case,
the Court said: “Indeed damage alone may constitute a taking.”
Even under the appellants’ view of this phase of the matter,'the Court could not hold, as a matter of law, that the raising of the highway in the case at bar constituted a mere inconvenience for which the respondent would have no redress. Numerous witnesses testified as to substantial depreciation in the value of respondent’s property caused by the raising of the highway, and that testimony was of such nature it could not be disregarded by the Court. When the question of injury to the respondent was submitted to the jury, under proper instructions as to the measure of damages
(Railroad v. Burton, supra),
that body found that the respondent had been damaged in the sum of $15,000, and there was ample testimony to support the finding.
In addition to this right of the respondent to redress, the railroad company, in the present case, as we have already pointed out, specifically assumed responsibility for any damages that might arise from the change of elevation of the highway.
The appellants further contend that, where a person conveys to a railway company a right of way over his land, the consideration paid for such conveyance presumptively embraces all reasonably necessary damages to his adjoining land, past, present, and future, which an assessment of damages in condemnation proceedings would include, and that any injury to the respondent’s lands resulting from the raising of the highway in the present case could have been included in any damages that might have been assessed under condemnation proceedings, and'that therefore the respondent cannot recover.
The condemnation Statute of this State (Section 4993, 3 Code 1922), provides that the compensation in condemnation proceedings shall be ascertained with respect “to the cprantity and value of the land which may be required, and to the special damage which the owner may sustain by reason of the construction of the highway through his lands.”
In
Lockhart Power Co. v. Askew,
110 S. C., 449; 96 S. E., 685, which was a condemnation proceeding, the Court said:
“The general rule is that, where condemnation is provided, that remedy is exclusive, and that there can be but one assessment of compensation in such proceedings, which is conclusively presumed to include all damages to the owner of the land — past, present and future — -by reason of the taking. * * *
“If this element of damage is reasonably certain to arise from the ponding of water on respondent’s land, there is no sound reason why it should not be included now in his compensation. The fact that it is not absolutely certain to arise
does not exclude it from consideration. It should not be included, if it is a mere possibility
(Railroad Co. v.
Sineath, 8 Rich. [Raw] 185, 193), for that would be going into the realm of speculation and conjecture. But, if it can be proved that such an element of damage is reasonably certain to follow, then it ought to be included in the compensation, for otherwise respondent would be remediless if it should occur. * * * All damages — past, present and future— which naturally or necessarily and proximately arise from the taking, whether they were in contemplation of the parties at the time or not, except those resulting from negligence in the use of property taken, are conclusively presumed to have been included in the compensation awarded in condemnation.”
These statements, occurring in the same opinion, show the nature of the injuries which are presumed to be included in a condemnation proceeding, and for which such proceeding constitutes the exclusive remedy.
It has been held in this State, for instance, that damages may be recovered in condemnation proceedings for'the rattle of the train, the blowing of the whistle, the smoke of the engine, the deterioration of parcels of land, the alterations of arrangement required about the homestead, the loss of time and expenditures caused by any increase of distance which has been occasioned, the injury to the value which the place had as a stand for a public house, etc. All these are injuries which might “naturally or necessarily and proximately arise form the taking” of the land, and result from the construction and operation of the railroad upon the right of way conveyed for that purpose.
The appellants cite the case of
Johnson v. Southern Rail
way, 71 S. C., 241; 50 S. E., 775; 110 Am. St. Rep., 572, as follows:
“We think the nonsuit was properly granted. The condemnation statutes allow an assessment not only for the
quantity and value of the land which may be required by the railroad company, but for any special damage which the owner may sustain by reason of its construction. Section 2190, 1 Code 1902. This would certainly include the damages resulting from the construction of the embankment in a proper manner.”
In that case, however, the embankment was built upon the right of way itself, and not , as in the present case, upon other lands, and that case supports our position.
We do not apprehend that injuries resulting from a raising of the highway on lands not conveyed to the railroad company, but entirely independent of such lands, in order to create an approach to an overhead bridge across the right of way conveyed, is an element of damages so closely connected with the construction or operation of a railroad upon the premises conveyed as to bring them within the reasonably necessary consequential damages flowing from the construction and operation of the railroad, so as to raise the presumption that they are included in a deed given in lieu of condemnation proceedings.
We do not mean to say that injuries resulting from such raising of the grade of the highway could not, in a case like this, be assessed in a condemnation proceeding, but it would have to be shown in the proceeding itself that such injuries were reasonably necessary or arose proximately from the change of grade, or were in contemplation of the parties. This is not equivalent to saying, however, that a deed to a railway company, executed in lieu of condemnation proceeding, is conclusively presumed to include such injuries in its consideration — whether such injuries are so included must be shown otherwise than by presumption.
The appellants attempt to show, in the present case, that the parties contemplated the raising of the highway when the deed was executed and,
inter alia,
as evidence of that fact a plat dated February 4, 1924,
referred to in the option of the respondent, was placed in evidence for the purpose of showing that the raising of the grade was contemplated in the execution of the deed. Upon examination, however, this plat shows upon its face that it bears several revisions made subsequently to the date of the option and deed, and this Court cannot determine, even if the plat introduced shows the proposed raising of the grade of the- highway, whether- the plat without the later revisions showed such change of grade. The respondent himself denied that he knew the raising of the grade of the highway was contemplated by the railroad. Mr. Horne, an agent of the appellants, in a conversation with the respondent subsequent to the date of execution of the deed, stated to the respondent that the railway company was not interested in the fill. The conflicting testimony on this point made an issue of fact which was properly submitted to the jury. This issue the jury decided in favor of the respondent, and we cannot say that the testimony does not support their finding. .
This brings us to a consideration of the point really raised by this exception, which is, Did the release in respondent’s deed to appellants include any injuries that.might be done to respondent’s property by raising the grade of the highway? The appellants’ position may perhaps be best stated by the following quotation which they make from 33 Cyc., 182 :
“A
stipulation in a grant to a railroad company releasing it from damages caused or to be caused by the location, construction, maintenance, and operation of the road, releases the company from liability for such damages as are a necessary result of the location, construction, maintenance, and operation of the road in a legal and proper manner.”
The release specifically states that the consideration includes, “not only the value of the said land hereby conveyed, but also all and any incidental or consequential dam
ages accruing to other and adjacent lands of the grantors from or on account of the construction and maintenance of said railroad upon the land hereinbefore described and hereby conveyed.”
We have carefully examined this language, and endeavored to construe it in connection with the injuries to respondent’s property set up in the complaint, and we do not think that the injuries to plaintiff’§ property are
“a
necessary result of the location, costruction, maintenance, and operation of the road in a legal and proper manner.” The release specifically covered “incidental or consequential damages accruing * * * on account of the construction and maintenance of said railroad upon the land * * * conveyed.” Neither under the specific terms of the release nor under the principle of construction advanced by appellants can it be considered that injuries accruing to respondent’s property on account of the raising of the highway (over which the respondent had no control), for the purpose of providing an approach to a bridge over the right of way conveyed by respondent, are covered by the release included in the deed. The construction and operation of the railroad would not necessarily require a raising of the grade of the highway.
It is urged, however, that the respondent knew at the time he executed the release that the highway would be raised by the appellants, and that for this reason he is precluded from recovering damages in this suit. As already pointed out, testimony tending to show that the respondent had such knowledge, and equally positive testimony to the contrary, was offered and admitted at the trial. This made an issue of fact' for the jury, which was submitted to them by the Court under proper instructions, and decided by them in favor of the respondent.
It is thus seen that, whether the matter be viewed from the standpoint of a presumptive release through the conveyance of the right of way, or of an actual release in' terms, or
in the light of circumstances attendant upon the execution of the release, that is, knowledge of the respondent at the time of the execution of the deed that the highway would be raised, the respondent is not barred from prosecuting this action or from recovering damages for any injury he may have suffered from the raising of the highway.
Seventh exception:
“The presiding Judge erred in not charging the jury as follows: Tf from the evidence you conclude that Mr. White had notice before the execution of this deed that the highway was to be raised, and therefore, if the raising of the highway was contemplated, under the evidence then it is for you to say whether or not this release would be binding on Mr. White’; the error being that this was a sound proposition of law, and the Court should have submitted the effect of the release as pleaded to the jury under the evidence in the case.”
There was -no error in the refusal of the trial Judge to charge as requested; the instructions that he gave to the jury on this point in his general charge adequately covered the appellants’ request.
Eighth exception:
“The presiding Judge erred in charging the jury, ‘The release in the deed of respondent does not constitute a bar for the raising of the street or road through the adjacent property’; the error being that the Court should have charged that this release does constitute a bar, if they found from the,evidence that the raising of the highway was in the contemplation of the parties when the deed was executed.”
This exception has been disposed of by what we have already said in discussing the sixth exception.
Ninth exception:
“Because the presiding Judge erred in not granting a new trial in that he failed and refused to submit the release, as
contained in the deed, and the option to the jury, and in charging that the same did not cover damages for the raising of the highway; the error being that he should have submitted these to the jury, and charged them that if, at the time of the execution of the deed, the raising of the highway was in the contemplation of the parties, then the plaintiff could not recover.”
What we have said with reference to the sixth exception applies here. Even if the option should be considered together with the deed, the language of the option and the language-of the deed relating to release have practically the same meaning.
We shall consider Exceptions 10, 11, 12, and 13, as they raise the same question. By these exceptions the appellants impute error to the trial Judge in allowing counsel for respondent, in the closing argument to the jury, to make statements with reference to testimony that had been excluded by the Court, and in refusing' to restrain plaintiff’s counsel in the same argument from making statements to the jury unsupported by testimony, and in refusing to grant a new trial on these grounds.
It appears from the record that, during the argument of Mr. Nicholls, of counsel for respondent, he made certain remarks to the jury which Mr. DePass, of counsel for appellants, regarded as being unsupported by the record, and prejudicial to the appellants, and thereupon a colloquy ensued between them. The remarks of neither, however, were directed to the Court. The trial Judge, addressing both counsel, ended the colloquy by saying:
“I am not ging to have any personalities in this case. Proceed with the argument.”
Counsel for appellants contends that he was thus prevented from protecting the rights of his clients, which were prejudiced by the remarks of Mr. Nicholls. Later a motion for a new trial, supported by affidavits of several persons, was
made before the presiding Judge on the grounds, among others, stated in these four exceptions. In his order refusing the motion the Court said:
“I did not at any time cut counsel off from objecting to the argument of Mr. Nicholls, and, if counsel had objected to anything which was said by Mr. Nicholls in his argument which was outside of the record, I would certainly have expunged it from the record. No objection was made to any part of the argument, and I was not called upon to rule upon any part of the argument. I did not pay very close attention to the argument of Mr. Nicholls, and cannot be positive as to what was said. I do know that no objection was made by defendants’ counsel, nor was my attention called to anything that Mr. Nicholls said that was out of the record, during or after the argument. If counsel had objected or called my attention to any part of Mr. Nicholls’ argument, and if it had not been a proper argument, I would certainly have expunged it from the record.”
The trial Judge further stated in his order that both Mr. DéPass and Mr. Nicholls were much excited in their colloquy, and were not in a position to remember what occurred as well as the Court; that his remarks were addressed to both counsel and were intended to stop personalities; that' “no objection was made to the Court, nor -was the Court ever asked to stop counsel from going out of record.”
While improper argument by counsel to the jury will not be condoned or -allowed, it is proper and necessary that the Court’s attention be called to such argument by timely objection on the part of opposing counsel, and failure to make such objection “is a waiver of the right to object afterwards.”
Bunch v. Charleston & W. C. Railway Co.,
91 S. C., 139; 74 S. E., 363.
Spigener v. Seaboard Air Line Railway Co.,
111 S. C., 405; 98 S. E., 330. Under the statement of the whole matter, made by the trial Judge in
his order, there was no error in refusing a new trial on these grounds.
We have carefully examined the record, and find no error committed in the trial of the case that was prejudicial to appellants. The trial Judge correctly charged the law with respect to the issues made by the pleadings and the evidence; issues of fact were properly submitted to the jury, who resolved all questions in favor of the respondent, and their verdict should be allowed to stand.
All exceptions are overruled, and the judgment of the Circuit Court is affirmed.
Mr. Ci-iiee Justice Watts and Messrs. Justices Brease and Carter concur.