been able to find any case or precedent directly in point, and we have found none, but on the general principles upon which actions for 4. Driver seated in vehicle. The plaintiff, in Ploetz v. Holt, 124 Minn. 169, 144 N. W. 745 (1913), sued defendant to recover damages for personal injuries sustained by her when the team attached to the buggy in which she was sitting became frightened at defendant's automobile and ran away, inflicting on her a compound Pott's fracture of the left ankle. It appeared that plaintiff's husband drove the buggy to a neighbor's house to take plaintiff home, and while the buggy was standing in front of the house, and after plaintiff got into it, defendant's son drove up with defendant's automobile, in close proximity to the team, so that they took fright. For opinion in this case see 14 N. C. C. A. 471n. B. Unhitched and untied, but held by boy. Plaintiff's mules took fright at defendant's automobile on a public highway, and so conducted themselves that one was killed and the other injured. Plaintiff sued defendant to recover for such damages, alleging that they resulted from his negligence. The facts stated by the court were that defendant, with his wife, was driving an automobile north along a public highway, and, on reaching an intersection turned west into the intersecting road; that plaintiff's 17-year-old son was in charge of a pair of mules which had been hitched to a grader, but at the time of the accident were unhitched from the grader and were standing about 30 feet from the intersection on the east and west road, to the west of the intersection, when the automobile passed them; that the mules were in full view of defendant; that they began to take fright at the automobile, which fright was observed by defendant, but notwithstanding such fact he increased the speed of the automobile, making a "terrible noise," causing the mules to break loose from the boy, and run, one on either side of a tree, breaking the neck of one of the mules, and badly injuring the other. It appeared that defendant had placed some dogwood branches with blossoms on them in the automobile, which extended a short distance above the automobile bed. Defendant appealed from a judgment for plaintiff. The question submitted called for the decision of the court as to the sufficiency of the evidence to sustain the judgment. The cause was certified to the supreme court by the court of civil appeals, and on the facts stated the supreme court held that the evidence was sufficient, as a matter of law, to sustain the judgment, and said: "Under the facts of this case it was the duty of Carsey [defendant] to halt his automobile and to cease the noise until the mules could be removed or controlled. Negligence, if any, of the boy in charge of the mules constituted no defense to the action." Carsey v. Hawkins, 106 Tex. 247, 163 S. W. 586 (1914). For former opinion by the court of civil appeals, see App. 165 S. W. 64 (1911). Tex. Civ. C. Being hitched to vehicle. A horse, becoming frightened at defendant's automobile, ran against plaintiff and knocked him down. Suing defendant for the injuries thus inflicted, plaintiff alleged that he was standing in front of the horse holding it by the reins while the animal was being hitched to a buckboard by the owner and negligence are based, we are satisfied that the plaintiff cannot recover. The judgment is affirmed. All the Justices concurring. an assistant; that defendant came along in his automobile, at the sight of which the horse became frightened in plain view of the defendant; that thereupon one of the men engaged in hitching the horse to the buckboard waved his hand in the direction of defendant as an indication of danger; and that defendant, although aware of the danger, continued to advance with his automobile, so that the horse became unmanageable and plunged forward knocking plaintiff down and pulling the vehicle over him. The evidence tended to show that defendant in company with a friend was running his automobile along the street in a careful manner and at a rate of speed estimated at 4 to 6 miles an hour, and was keeping a lookout to avoid accidents; that defendant did not discover the fright of the horse until he was in the act of passing it; that the animal was at that time shying, but was being held by two men, and did not become uncontrollable until after that the automobile had gone by; neither defendant nor his companion saw the man waving his hand as a signal; that defendant's companion observed that the horse gave indications of shying when they had approached within a little less than the width of the courtroom from it, but the animal did not at that time manifest severe fright; that the horse was shown to be "automobile shy," but that fact was not known to defendant at the time of the accident. The trial court overruled defendant's motion to set aside a verdict for plaintiff as contrary to the law and the evidence, and the court, in reversing the judgment upon such verdict and remanding the case for a new trial, held that negligence on the part of defendant had not been established, and that the court erred in overruling the motion to set aside the verdict. Baugher v. Harman, 110 Va. 316, 66 S. E. 86 (1909). D. W. C. BOWERMAN v. HAMNER. [Supreme Court of the United States, June 9, 1919.] 1. Banks and banking-National banks-Duties of directors-Effect of statute upon common-law obligations. The National Bank Act, by imposing various specific duties on directors, other than those imposed by the common law, does not relieve such directors from the common-law duty to diligently and honestly administer the affairs of the bank. 2. Banks and banking-National banks-Actions against directors for negligence in management-Pleading-Joinder of statutory and common-law grounds. In a suit against national bank directors for an accounting and for money lost. through unlawful and negligent management of the affairs of the bank, the bill may be so framed that, if the evidence fails to establish statutory negligence but establishes common-law negligence, a decree may be entered accordingly without resort to a second suit. 3. Banks and banking-National banks-Liability of directors for negligenceNecessity of proof of actual knowledge of illegal and negligent management. In an action against national bank directors to recover money lost by alleged unlawful management of the bank's affairs, it is not necessary, under a bil based upon the violation of the common-law duty to honestly and diligently admin ster its affairs as well as upon the violation of specific statutory provisions, to prove that defendant had actual knowledge of the illegal and negligent management of the bank. 4. Banks and banking-National banks-Liability of director for negligenceWant of knowledge of mismanagement by officers as defense, where director consistently failed to attend meetings. A director of a national bank who held such position during the 5%1⁄2 years of the bank's existence but never attended a directors' meeting, and who was a banker of such experience that even slight care in the discharge of his duties must have led him to discover the illegal and neg igent manner in which the bank was being managed, cannot escape liability because of want of knowledge of the wrongdoing. 5. Appeal and error-Questions for review-Right to reversal on ground case tried on erroneous theory where bill correctly charged alternative grounds. A defendant in a suit in equity to recover money lost through unlawful and negligent management of a national bank of which he was a director, under ces and situation of every individual bank, so that it would be impossible to specify any particular thing that he should do. What would be a good loan or a good investment or good business for a bank in one year or in one locality might be the very worst kind at another time for another bank." Wallach v. Billings, 277 Ill. 218, L. R. A. 1918 A 1097, 115 N. E. 382 (1917), aff'g 195 Ill. App. 605 (1914). Cross-references. Liability of savings bank paying deposit on forged order, see 18 N. C. C. A. 332-358, ante; negligence affecting actions by drawee against purchaser of check or draft forged in signature or indorsement, see 14 N. C. C. A. 567-581; negligence of depositor as affecting bank's liability to him for payment of check forged in signature or indorsement, see 14 N. C. C. A. 812-831; negligence of em ployer in failing to examine books as 'precluding recovery for checks, money orders, etc., forged by employee, see 7 N. C. C. A. 638-641; individual liability to third persons of corporate officers, directors or agents for "corporate negligence," see 7 N. C. C. A. 614-621; liability of bank for negligence in making collection, see 7 N. C. C. A. 388-407; negligence of collecting bank in sending draft directly to drawee bank for payment, see 2 N. C. C. A. 722-735. See also Am. Neg. Cas. Digest, pp. 73-74, 345-346, and Am. Neg. Rep. Digest, pp. 128-130. I. General considerations. A. Duties and liabilities of directors generally. "The duties of a bank director vary according to the business, circumstan "When a defendant is sued for negligence in his individual capacity as a private person, the question whether he has or has not exercised that degree of care which under all the circumstances might reasonably have been expected of an ordinarily prudent man is, generally speaking, a question of fact. But these defendants are sued as bank directors and the standard of reasonable care required by law of bank directors is affected by their fiduciary position, by the nature of the business, and by the fact that, in accepting the office they hold themselves out as reasonably competent and reasonably qualified to perform the duties of the office. So that the issue in this case is not whether the defendants have conducted themselves as a bill which sufficiently charged both statutory violation and common-law negligence, who, though charged with notice that the court's decision was subject to review on both the law and the facts, neither testified in his own behalf nor offered any evidence upon the question of his liability, is not entitled to a reversal on the ground that the trial below was on the theory that only the charge of statutory liability was involved and to be met by him. 6. Courts Practice in federal court-Denial of allegations in answer without reply. Averments in the answer of one sued in equity to recover money lost because of the illegal and negligent management of a national bank of which he was a director, that he was not a director after a certain date and refused to qualify when notified of re-election, must be deemed denied under the thirtyfirst equity rule providing that, unless the answer assert a set-off or counterclaim, no reply shall be required without special order of the court or judge. 7. Banks and banking-National banks-Directors-Sufficiency of evidence to show retention of office. Where the only evidence in the record, in a suit against a director of a national bank, upon the question of the time during which he was director, was his oath of office taken in January, 1910, and testimony of the receiver that might reasonably be expected of ordinarily prudent men, but whether they have conducted the affairs of this bank as might reasonably be expected of ordinarily prudent bank directors. * ** Bank directors, in their relation to the corporation, its creditors and depositors, occupy а fiduciary position. Many authorities regard them as trustees, others as not technically trustees, but all agree that by accepting the office they become obligated to exercise reasonable care and prudence in the discharge of their duties. * The difference in the relation between a savings bank and its depositors on the one hand and an ordinary bank of discount and its depositors on the other, is well understood, and without going so far as to say that the directors of a savings bank are trustees in any higher sense than those of other banks, it is, nevertheless, evident from the character of the institution, that the rule requiring of bank directors the exercise of reasonable care and diligence in the performance of their duties should not be relaxed at all in the case of savings bank directors. Reasonable 18 N. C. C. A.-32 care in the performance of the duties of director of a savings bank means the exercise of the same degree of care that ordinarily prudent directors of savings banks would exercise under like circumstances. It seems clear that a due performance of the duty of reasonable care on the part of savings bank directors involves at least a compliance with the statutes of the state, the by-laws of the corporation, and the usages of the business. Absolute uniformity of usage is not required, but in savings banks, as in the conduct of other business, the omission to make use of an ordinary and approved precaution against the known risks of the business is, in the absence of any substitute for such omitted precaution, prima facie evidence of a want of reasonable care." Lippitt v. Ashley, 89 Conn. 451, 94 Atl. 995 (1915). In Rankin v. Cooper, 149 Fed. 1010 (1907), the duty of bank directors in respect to the management of the affairs of the bank is summarized as follows: "(1) Directors are charged with the duty of reasonable supervision over the affairs of the bank. It is their duty to use ordinary diligence |