
    
      G. D. McCracken vs. Peter Hair.
    
    1. If an overseer who has been guilty of acts of misconduct or negligence "which occasion no direct pecuniary damage to his employer, but which yet so exhibit his unfitness for his place as to justify his dismissal, be continued in his employment, with a full knowledge of them on the part of the employer, such acts will not afterwards justify a refusal to pay the contract price of his service, or if no price be stipulated, the true value of the services enjoyed-.
    2. But actual loss occasioned, stands upon a different footing from offence given by conduct unbecoming an overseer, and is not pardoned by his continuance in service.
    3. Where it was alleged by the employer, that he had sustained injury, by loss of time, late sleeping, and ill treatment of negroes by his overseer, it is for the jury to inquire whether these matters were fully known to the employer, and if so, no consequence can he given to them beyond the injury they produced.
    
      4. Where a blow has been inflicted on a negro by an overseer, if it be unreasonable and improper, and even if known to the employer, he is not bound to bear the charge of medical services thereby brought upon him.
    5. An overseer is bound to exercise that care of the property placed under his control which an ordinarily prudent man exercises in relation to his own property, and if by want of such care, property be lost, he is liable.
    6. But whether loss has resulted from want of ordinary care, is to be decided by the jury upon consideration of all the circumstances.
    
      Before Wardlaw, J. at Newberry, Spring Term, 1843.
    In this action of assumpsit, the plaintiff sought to recover $280, for his wages as overseer in the year 1841, upon the defendant’s plantation, on Timothy creek, three miles from the defendant’s residence.
    The plaintiff proved that he had been overseer of the plantation for part of the year 1840, and continued throughout the year 1841, until the 24th of December, when he quit, and was next day succeeded by another overseer; that he discharged his duties faithfully towards the defendant, and before and since was a good overseer for other persons; and that his services were fairly worth for 1841, $300, of which $20 had been paid. By the course of the case, it seemed to be admitted that the year’s wages had by contract been fixed at $300.
    Under the general issue and notice of discount, the defendant offered evidence to shew that the plaintiff had lost time; that he slept too late in the morning; that he had improperly struck a small boy on the head; that he had cruelly treated a woman; and by his negligence or improper management, three mules of the defendant’s had been drowned, worth $300.
    The presiding“Judge instructed the jury that acts of misconduct or negligence, which occasioned no direct pecuniary damage, but might yet have so exhibited the plaintiff’s unfitness for his place, as to justify his dismissal, were pardoned by the defendant’s continuance of him in the employment, with a full knowledge of these acts, and that such acts could not now justify a refusal to pay the contract price, or if no price stipulated, the true value of the services enjoyed; but that actual loss occasioned, was upon a different footing from offence given by conduct unbecoming an overseer, and was not pardoned by his being continued in service; that as to the loss of time, late sleeping, and ill treatment of the negroes, taking each complaint separately, the jury should inquire whether these matters were fully known to the defendant, and if they were, then no consequence could now be given to them beyond the injury they produced; that if the blow given to the small boy was unreasonable and improper, even if it had been made known to the defendant, he should not bear the charge of medical services thereon brought upon him ; that of all the property under his control, the plaintiff was bound to take the care which an ordinarily prudent man exercises in relation to his own property, and if by want, of such care the mules were drowned, the plaintiff should be liable; and that the question whether the loss had resulted from want of ordinary care, should be decided by the jury upon consideration of all the pircumstances.
    The jury found $280 for the plaintiff.
    The defendant moved for a new trial, upon the following grounds:
    1st. Because his Honor charged the jury that all the acts of negligence or misconduct on the part of the overseer were pardoned by his being permitted to remain after-wards in his employ.
    2d. Because, although the defendant proved by positive testimony acts of unwarranted violence and abuse on the part of the plaintiff, on defendant’s negroes, (viz: Nelson and Mary,) and there was no evidence of defendant’s knowledge of them until after plaintiff had left his employ, yet his Honor instructed the jury that they must regard them as being authorized or approved by defendant.
    3d. His Honor misstated the testimony to the jury as to the negligence of the plaintiff, when the mules were drowned, by saying that there was no evidence of the plaintiff’s knowledge that the wagon and team were on the opposite .side of the stream, or whether the overseer had any control of them.
    4th. Because his honor erred in charging the jury that the degree of negligence necessary to charge an overseer with the loss of property entrusted to his charge, was only such as an ordinarily prudent man would take of his own property.
    5th. Because the verdict was wholly contrary to law and evidence.
    
      Fair, for the motion^ Caldwell, contra.
   Caria, per

Wardlaw, J.

This court is satisfied with the instructions given to the jury, as they have been reported, and sees no reason to disturb the verdict which has been rendered. The motion is dismissed.

Richardson, Evans, O’Neall and Butler, JJ. concurred.  