National Banking Act, and therefore an element of the action of deceit is wanting; and that such act requires "proof of something more than mere negligence and recklessness; nothing short of an intentional violation will suffice." Yates v. Jones National Bank and other cases are cited to support the contention. The contention goes beyond what was said in Yates v. Jones National Bank. The language there is "that where by law a responsibility is made to arise from the violation of a statute knowingly, proof of something more than negligence is required—that is, that the violation must in effect be intentional." Not, therefore, that as a condition of liability there should be proof of something more than recklessness; not that there should be an intentional violation, but a violation "in effect" intentional. There is "in effect" an intentional violation of a statute when one deliberately refuses to examine that which it is his duty to examine. And such was the conduct of plaintiffs in error in this case. They had notice from the Comptroller of the Currency that $194,000 of the items counted as assets of the bank were doubtful and should. be collected or charged off. This "was a direct warning to them," as the trial court said, "by the bank examiner and Comptroller that assets to nearly twice the amount of the capital stock were considered doubtful." They, notwithstanding, represented the assets to be good. Such disregard of the direction of the officers appointed by the law to examine the affairs of the bank is a violation of the law. Their directions must be observed. Their function and authority cannot be preserved otherwise and be exercised to save the banks from disaster and the public who deal with them and support them from deception.

It is further urged that it is unjust to sustain against plaintiffs in error the view of the action entertained by the Appellate Division because they say that their defense in the trial court was addressed and adapted to the case made

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Opinion of the Court.

against them. "Had the action," they say, "been considered as based upon a Federal statute, there were many matters of defense which they could have interposed to such a charge, but which they had a right to omit, and were justified in omitting, at the time." In specialization of this it is said that they might have shown their relation to the bank and the confidence they had and were justified in having in the statements of certain of its officers, the cashier being instanced as one upon whom they might have relied "to prepare and correct a legal statement." And they contend that by such showing they would have been acquitted of having "knowingly violated the statute.""

This contention does not seem to have been urged in any of the courts below. It is stated in the opinion of the Appellate Division that "there is no pretense by defendants that they have been prejudiced by the theory followed in the court below." It is somewhat late now to urge it, but, however, we think it is without merit. There was an issue of knowledge tendered by the pleadings, and to sustain their side of the issue plaintiffs in error offered testimony of the correctness of the books and to show that the report was a true copy of them, as it was alleged in their answer to be. No attempt was or is made to show why the notice from the Comptroller was disregarded (we have seen it was known to plaintiffs in error prior to the attesting of the report), except that they point to the fact that $97,000 of the items mentioned by the Comptroller were subsequently collected and that they should have been given time to collect the other assets. But the fact of the false representation remains, and the assessment of 100 per cent upon the stock purchased by defendant in error, which increased the cost of his stock $3,000.

The plaintiffs in error, indeed, are quite at pains to show that a representation to be actionable for deceit.

Opinion of the Court.

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must not only be false, but must be known to be false. In other words, to quote from their brief, "To sustain an action for deceit, not only falsity but knowledge of falsity of representation must be shown," and for this New York cases are cited. In another part of their argument they say actual knowledge is not necessary, but that the action may be supported if reckless inattention has made the injury possible.

It is manifest, therefore, that plaintiffs in error did not refrain from showing want of knowledge because of the theory upon which the case was tried, and such showing was obviously relevant to support that theory and the defense that the requirement of the National Banking Act had not been violated, which was their explicit contention.

Besides, judgment cannot be reversed upon the mere suggestion that upon some other theory than that upon which the case was tried evidence might have been introduced which might have changed the result. But we are extending the discussion unnecessarily. The courts of New York have decided that the requirements of the local law of deceit are identical with what we have decided are the requirements of the National Banking Act.

Judgment affirmed.

BEUTLER v. GRAND TRUNK JUNCTION RAILWAY COMPANY.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 194. Submitted March 6, 1912.—Decided March 18, 1912.

Courts may not abolish an established rule of law upon personal notions of what is expedient; and so as to the fellow-servant doctrine even if it be, as it has been called, a bad exception to a bad rule. In cases tried in the United States courts the court must follow its understanding of the common law when no settled rule of property intervenes.

The fellow-servant rule applies where the character of their respective occupations brings the people engaged in them into necessary and frequent contact even if they have no personal relations.

An employé of a railroad company engaged in work in the repair yard is a fellow-servant of the crew of a switching engine of the same company engaged in running cars needing repairs into the yard. Although the question of fellow-servant may be left to the jury in the state court, the question whether the facts do or do not constitute a ground of liability is one of law; this court accordingly answers a question certified by the Circuit Court of Appeals as to whether employés in this case were fellow-servants.

If a law is bad, the legislature, and not juries, must change it.

THE facts, which involve the determination of whether certain classes of employés of railroad companies are fellow-servants, are stated in the opinion.

Mr. James J. Barbour, with whom Mr. Raymond W. Beach and Mr. Elmer E. Beach were on the brief for Beutler:

A car repairer exclusively employed under a separate and special foreman in the car repair department of a railroad company whose duties never bring him in relation to or in contact with the persons comprising an

Argument for Railway Company.

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engine and switching crew-exclusively engaged in a separate and distinct department known as the operating department-is not a fellow-servant with the members of such engine or switching crew. Gilmore v. Nor. Pac. R. R. Co., 18 Fed. Rep. 866, 870; Pike v. Chicago & A. R. R. Co., 41 Fed. Rep. 95, 99; Nor. Pac. v. Herbert, 116 U. S. 642; B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 383; Santa Fe & Pacific R. R. Co. v. Holmes, 202 U. S. 438; McCabe & Steen Co. v. Wilson, 209 U. S. 275, 280; Northern Pacific R. R. Co. v. Hambly, 154 U. S. 349.

The case at bar arose in Illinois, and the Supreme Court of that State has held in cases similar to the one at bar that the doctrine of fellow-servant does not apply. Although the state decisions are not binding on this court, the reasoning therein may well be adopted as the law covering this particular case. Nor. Pac. R. R. Co. v. Hambly, 154 U. S. 361; I., I. & I. R. R. Co. v. Otstot, 212 Illinois, 429; Rolling Mill Co. v. Johnson, 114 Illinois, 57; P. D. & E. Ry. Co. v. Rice, 144 Illinois, 227; Haas v. St. L. & S. Ry. Co., 111 Mo. App. 706, 713; Gathman v. City of Chicago, 236 Illinois, 9, 15; L. E. & W. R. R. Co. v. Middleton, 142 Illinois, 550; Duffy v. Kivilen, 195 Illinois, 630, 634.

Mr. George W. Kretzinger for Railway Company:

The trial court in holding that the deceased and the engine and switching crew were fellow-servants followed the law as many times declared by this court.

Persons in the service of the same employer and bearing such relations to each other and to the business they are jointly engaged in, as a switching crew and a car repairer in the railroad yards of the master, are fellowservants, and the master is not liable for an injury to one through the negligence of the other.

In this case it must be assumed that all proper regulations were made by the master for the safety of the