OPINION.
I. trial court erred in excluding from the evidence the contents of the books of the correspondent banks in
BOND, J.
Record Entries of Correspondent Bank.
(After stating the facts as above). — The St. Louis and Kansas City. Those books contained entries of the various drafts drawn upon said banks by the cashier, of the Middleton Bank and of the dates and amounts paid upon such drafts. They were made by the two witnesses who produced the books.and testified to their contents, who were employees of the correspondent banks and as such made [549]*549the entries on their hooks in the due course of business between them and the Middleton Bank. These books furnished a record at first hand of the course of dealing between the Middleton Bank and its two correspondents.
The law is now well settled, that such book entries are competent evidence of accounts between parties affected thereby. After a full review of the authorities on the subject, Judge Black, speaking for the court, reached the conclusion that account books which had always been usable to refresh the memory of the party keeping them where such person was a competent witness, should be admitted in evidence independently and even in favor of the party for whom they were kept, provided such account books were original entries, fair upon their face, and shown to have been kept in the usual course of business, and the entries thereon were concomitantly made with the happening of the facts recorded, and therefore constitute a part of the res gestae. [Anchor Milling Co. v. Walsh, 108 Mo. l. c. 284, 285.] The rule thus announced has been constantly adhered to by this court. It has been held to justify the admission in evidence of “prices current, provided they be traceable to reliable sources” as indicative of the state of the market. [Seligman v. Rogers, 113 Mo. l. c. 657.] And the doctrine has been specifically applied to the right of a banker to sustain his action against a debtor by showing the transactions between them as they appeared upon the books of the bank upon which they had been transcribed each day from the checks of the customer and the tickets of the teller and where the accuracy of these transactions was proven by balancing the bank books upon which they were made. [Robinson v. Smith, 111 Mo. l. c. 207.]
In the case at bar, the particular employees of the two correspondents who made the entries on their books testified that these entries were original ones, [550]*550made in the usual course of business and as part of their duty and at the time the drafts of the Middleton Bank were presented for payment; that the account shown on the books was accurate and correct in all respects.
Under the foregoing decisions, these books were admissible in evidence, both as aids to the testimony of the parties who kept them and on account of their independent probative force. They were, in legal effect, just as much a record of the transactions of the Middleton Bank as if they had been made in its home office by its own employees. For the right of the correspondent banks to make and keep these records was an essential incident to the business relations between them and the Middleton Bank, and they would have been receivable in -evidence on behalf of the correspondent banks in any action which might have been brought to show the amount to which they were entitled to a credit against the Middleton Bank, or as a basis for recovery against it for the sums thus paid upon its request. The record shows that the payments thus made were actually enforced against the Middleton Bank in its settlement of its accounts with its two correspondents. It is, therefore, difficult to perceive under what theory, in the light of the foregoing rulings, the evidence thus furnished of the loss sustained by the Middleton Bank was excluded from, the view of the jury in the present action to recover those losses, as having been caused by the neglect of duty and mismanagement of its board of directors. The evidence furnished by these book entries and the testimony of the parties who kept them should not have been withdrawn from the jury. It is not denied that it showed accurately the amount and dates of the embezzlement of its money by the cashier of the Middleton Bank; and in connection with other conversions by him of the property of the bank in the way of overdrafts, it [551]*551fully warranted the verdict in plaintiff’s favor if the loss to the bank by the wrongdoing of the cashier was caused by the negligence of the defendant directors under the rules prescribed by law for measuring their responsibility as such officers.
II.
Bank Directors: Duties.
This presents the question as to the nature and extent of the duty imposed upon defendants while acting as directors of the Middleton Bank, and whether they exercised ordinary care or reasonable diligence in the discharge of that duty to prevent the loss to the bank from the misconduct of its cashier. The directors of a bank of deposit and dis- ... count (as the one in question) are not only trustees of its assets for the benefit of the bank and its stockholders (Magee on Banks & Banking [2 Ed.], p. 109, sec. 103) but are also responsible managers of its business and operations and invested with full power of selection and appointment of officers and agents to conduct its affairs. The control, supervision and conduct of the business of a bank is lodged in its board of directors as a collective body. The individual directors are not officers of the bank and have no powers individually to control its management. To do this, they must act as a board, in which capacity they have plenary power to act for the bank, subject to the limitations of its charter and the rights of its stockholders. [5 Cyc. 466; Calumet Paper Co. v. Haskell Show Printing Co., 144 Mo. l. c. 338; State ex rel. v. Rubber Mfg. Co., 149 Mo. l. c. 202; Bank v. Hill, 148 Mo. l. c. 389.] “While the office of bank director is generally gratuitous, it is never a sinecure.
III. ,
[552]*552
Degree of Diligence.
[551]*551In a very discriminating discussion of the duties and obligations of directors of a bank, a recent text-[552]*552writer has observed that the law views their liability from, two standpoints — the first, a rule of minimum liability which regards the matter entirely from the director’s side, and according to which he is required to exercise a general supervision ánd “fulfill a few specific statutory requirements, but not much more. It is not expected that he will devote much time ta the affairs of the bank, as he is rarely paid anything for his services, and generally is engaged in other and far more important business. It is not reasonable to expect that he will examine the books and other records, and without doing these things he cannot know much about the details of the bank’s affairs and this is supposed to be known by all who do business with banking institutions.” [1 Bolles’ Modern Law of Banking, p.278, sec. 24 et seq.] The author then refers to what is termed “the maximum rule,” and speaks of it as follows: “The other rule regards the duty and liability of directors from the public side,” and in stating this rule he says: The following language of Justice Earl is “more often quoted with approval than any other legal deliverance,” to-wit:
“It seems to me that it would be a monstrous proposition to hold that trustees, intrusted with the management of the property, interests and business of other people, who divest themselves of the management and confide in them, are bound to give only slight care to the duties of their trust, and are liable only in case of gross inattention and negligence; and I have found no authority fully upholding such a proposition. It is true authorities are found which hold that trustees are liable only for crassa negligentia, which literally means gross negligence; but that phrase has been defined to mean the absence of ordinary care and diligence adequate to the particular case. . . . Like a mandatary, to whom he has been likened, he is bound not only to exercise proper [553]*553care and diligence, but ordinary skill and judgment. . . . These defendants voluntarily took the position of trustees of the bank. They invited depositors to confide to them their savings, and to intrust the safekeeping and management of them to their skill and prudence. They undertook not only that they would discharge their duties with proper care, but that they would exercise the ordinary skill and judgment requisite for the discharge of their delicate trust.”
The writer, after a thorough discussion of the views of the courts of the various States from the two standpoints, concludes that the rule quoted above (from the opinion of Mr. Justice Earl, Hun v. Cary, 82 N. Y. 65) “commands much wider assent and is believed to be more salutary in its operation.” [1 Bolles on Modern Law of Banking, p. 294 et seq., citing authorities in support of his conclusion from sixteen States, including Missouri. Union National Bank v. Hill, 148 Mo. 380; Stone v. Rottman, 183 Mo. 552, 580.]
We approve the conclusion thus stated. The principles underlying it were also applied in a decision of Chancellor Pitney, now justice of Supreme Court of the United States, in a case quite the same as the one under review, as to the practice of the cashier in drawing funds out of a depository on drafts exceeding the sums for which they were entered on the books of his own bank. Said the court as to this plan:
“The first entry of each of these transactions on the books of the bank was made by the cashier on the stub of the draft. Of course, if honestly made, those entries' should correspond with the amount of the draft; but, when desiring to borrow or steal, he drew a draft for one amount and entered a less amount on the corresponding stub, and appropriated the difference to his own use. This appropriation was effected by actually drawing the cash from the Park Bank. [554]*554In these instances nothing was taken from the cash drawer of the insolvent hank."
“The amount so entered on the stub was, with the stub number, entered, with the other drafts drawn on each day on the Park Bank, on a blotter kept by the bank, and the sum of these items credited to the Park Bank in one item for that day. The result was that the theft could not he discovered by an examination of the books of the insolvent bank, which were complete in their character and well kept, nor by a count of the cash, which would not be affected by these entries.
“But the Park Bank, at the end of each calendar month, in accordance with the usual custom in such cases, made up a balance sheet or transcript of its account with the insolvent bank, more properly called an account current, upon which each of these drafts was entered, with its number, and forwarded the same, with the vouchers, to the insolvent bank. These transcripts, or accounts current, and vouchers were all preserved and found at the bank by the receiver. No examination of these balance sheets or comparison thereof or of the vouchers with the books of the insolvent bank was ever made by any person,, except the cashier. The duty of making this examination was cast entirely upon him; and, so far as appears, no inquiry was ever made as to any possible discrepancy in these accounts.
“That the very first of these thefts would have been discovered if a simple comparison of the two accounts, item by item, had been made each month, is too clear for argument. It was hardly denied by counsel for defendants.” [Campbell, Receiver, v. Watson, 62 N. J. Eq. l. c. 410, 411.]
The learned judge preliminary to the above statement of the facts announced the following observations as to the duties imposed by law on bank directors:
“Their names give credit and standing to the institution, and are a guarantee to dealers that its af[555]*555fairs will be conducted with reasonable prudence and care and according to law. They are, in my opinion, bound to acquaint themselves with the extent and mode of supervision exercised by officers of well-conducted banking institutions in the neighborhood. • I cannot yield to the suggestion of some of the defendants’ counsel that the fact that the institution in question was a small country bank relieved its directors from adopting the same practical measures for protection against frauds and thefts as were in use by its greater neighbors in the larger towns.
“Another observation is that the directors cannot be held liable for a mistake in an honest judgment upon matters properly mere matters of judgment, as distinguished from matters of administration. In matters of administration, where a duty to perform certain functions devolves upon them, they are justly held liable either for their nonperformance — nonfeasance— or for their lack of ordinary diligence in their attempted performance, whereby loss is incurred. By ‘ordinary diligence’ I mean such as is exercised by other prudent and diligent officers under like circumstances. What degree of diligence is reasonable, in the concrete, will be considered in connection with the specific acts of negligence upon which complainant relies.” [Campbell, Receiver, v. Watson, supra.]
All of which are in complete harmony with the rulings in this State when a suit is brought by a bank or its receiver or assignee. [183 Mo., supra; 148 Mo., supra; Thompson v. Greeley, 107 Mo. l. c. 590.]
The differentiations of slight, ordinary and gross negligence noted at common law and in the law merchant are no longer adhered to in the Missouri decisions. [Young v. Railroad, 227 Mo. 307; Magrane v. Railroad, 183 Mo. 119; Reed v. W. U. Tel. Co., 135 Mo. 661; McPheeters v. Railroad, 45 Mo. 22.] The .reason is, that an analysis of the cases will demonstrate that the practice of any of these degrees of negligence [556]*556is at least the absence of ordinary care and diligence if not the want of a higher degree of care and diligence, and is therefore always actionable when directly causing injury. If the circumstances are such on account of their simplicity and fewness as to require slight care, then the failure of that duty is none the less the failure of ordinary care and diligence, for that obligation the law postulates in every, case though it sometimes demands a higher duty, as in the case of carriers or owners of dangerous agencies. Likewise, where the facts of the transaction are complex and various, and for that reason require more attention and greater care than in the case first supposed, still the failure to observe these duties (barring exceptions noted) is only the absence of ordinary care and diligence, which is the elastic standard created by law upon the logic of the particular facts of each case. It follows that the sole criterion in ordinary actions for negligence like the one in hand, is whether the persons sought to be charged acted with ordinary care and reasonable diligence in view of the facts and circumstances of the given case, and that this obligation, though necessarily varying according to the particular facts, is one in principle and reason. The terms in question mean the duty of care equal to the occasion, and, hence, due and adequate care and diligence at all times. When this is shown, no liability accrues in actions like the one under review. When it is not practiced, then full responsibility attaches whether the negligence thereby resulting might have been previously termed slight, ordinary or gross. For every kind of negligence is actionable which is the converse of the duty of ordinary care and reasonable diligence and is the proximate cause .of injury to another. The law assumes this to be a reasonable standard of- conduct and has generally defined it by the terms, “that care or diligence which an ordinarily careful or prudent person would exercise under the same or similar circumstances.”
[557]*557IV.
In addition to the general rules of law governing the duty of a hoard of directors, the statutes of this State contain the following provisions in reference to banks of deposit and discount, which, as far as relevant to this case, are, to-wit:
Sec. 1099, R. S. 1909: “The affairs and business of the corporation shall be managed by a board of directors or managers, consisting of not less than three nor more than twenty-one shareholders, who shall be elected annually. . . . The board of directors of each and every bank organized under this article shall meet at least once per month and pass upon the business of the bank back to the previous meeting of the board, and shall keep a written record of its approval or disapproval of each and every loan, and at each monthly meeting the records shall show the aggregate of the then existing indebtedness and liability of each of the directors and officers of the bank, and no bills payable shall be made and no bills shall be rediscounted by the bank, except with the consent of the board of directors.”
And the further section, to-wit:
“Sec. 1112. The directors may appoint and remove any cashier or other officer or employee at pleasure. . . . The president, cashier, assistant cashier, or any other officer, upon whom the powers of a cashier may be imposed by the board of directors, before entering on the duties of their office, shall give good and sufficient bonds, which shall be approved by the board of directors, in writing, on the records of the board, upon which bonds no member of the board of directors •shall become a surety, in such sum and with such number of sureties as the board may direct, conditioned that they will well and faithfully perform all the duties of their office, and that they [the sureties] will hold the bank harmless for any loss occasioned by any act [558]*558of such, officer, until all his accounts with the bank shall have been fully settled and satisfied, such bond to be deposited in some safe place inaccessible to the maker thereof or the sureties thereupon. ’ ’
In speaking’ of the obligations of a board of directors to perform duties imposed by statute, it is said:
“It is their duty to know the express provisions of the statute which define their power, and for a violation of all such acts however committed by them, they will be held liable.” [Magee on Banks and Banking (2 Ed.), p. 123.] '
And on this subject, this court has announced the rule, to-wit:
“Under the provisions of the statute investing in a board of directors the management of the affairs of a banking corporation, the members of the board occupy a fiduciary relation to the stockholders, creditors and depositors, which demand of them careful attention, good faith and honest management. As is said in Louisville Nat. Bank v. Loving, 82 Ky. 370: ‘By reason of the trustee character of the bank, the great facilities its officers have for committing frauds, the inability of the public to know its condition, and the supreme control the directors have over its affairs, it becomes the duty of the latter to so conduct the business that any misconduct cannot long continue. The banks transact the business of the country so largely, and those dealing with them are compelled to rely on their officers so implicitly, that the extraordinary privileges accorded to them should be properly exercised.’ For a failure to discharge these important trusts they become liable at the suit of the corporation for losses to the corporate assets thereby sustained. [Bent v. Priest, 86 Mo. 482; Slattery v. Trans. Co., 91 Mo. 217; Ward v. Davidson, 89 Mo. 445; Hodges v. Screw Co., 1 R. I. 312; Smith v. Hurd, 12 Metc. 371; Attorney-General v. Ins. Co., 2 Johns. Ch. 371; Thompson on Liability of Officers, 376; Cogswell v. Bull, 39 Cal. 320; [559]*559Ins. Co. v. Jenkins, 3 Wend. 130; Hun v. Cary, 82 N. Y. 70; Mining Co. v. Ryan, 42 Minn. 198.]
“A-receiver of an insolvent corporation succeeds to the title of the property and rights, of action of the corporation, when so invested by statute, or by the decree of the court appointing him, and is the proper party to a suit to enforce them by legal proceedings. If a right of action against these directors existed in favor of the corporation, this action is properly prosecuted in the name of the receiver. [Alexander v. Relfe, 74 Mo. 516; Gill v. Balis, 72 Mo. 424; High on Receivers, sec. 316; Thompson, Liability of Officers, 377, and authorities cited by each; Morse on Banks and Banking, sec. 129; Hun v. Cary, supra.]” [Thompson v. Greeley, 107 Mo. l. c. 589-590.]
Applying the foregoing rules of law and statutory provisions to the defendants under the facts shown by this record, it appears that during the time the defendant directors held their offices, the cashier of the Middleton Bank, E. H. Lewis, was engaged in gann bling deals with keepers of certain bucket-shops; that to get money for this purpose, he had appropriated the funds of the Middleton Bank by overdrafts of his personal account, amounting to over $6000, and also by making fraudulent drafts upon two óf its depositories — a bank in St. Louis and a bank in Kansas City; that in so doing it was his habit to note on the bank register book of the Middleton Bank, that a draft had been •drawn upon one of these correspondents for a trifling or insignificant sum, and thereafter to fill out the •■draft for a sum in many cases involving thousands of dollars; that upon the payment of such drafts, the cashier would appropriate' to himself the excess of the amount paid on such drafts over and above the amount which he had falsely recorded on the books of the Middleton Bank. His misappropriation in this manner added to the amount of his overdrafts exceeded the amount for which the plaintiff obtained judgment [560]*560in this case. The aggregate amount of his embezzlement by both methods is undisputed. The whole extent and nature of the wrongdoing of the cashier might have been discovered by the defendant directors if they had examined at their monthly meetings the state of his personal account and had also caused to be submitted to them or to a committee appointed by them, the monthly return statements,, called “reconcilement sheets,” made to the Middleton Bank by its two correspondent banks in St. Louis and Kansas City, which showed the amount which such depositories had paid out during each month upon the drafts drawn upon them by the cashier of the Middleton Bank. It is con-, ceded that no such examination was had or caused to be made by the defendant directors. Their neglect in this respect was a clear violation of the duties imposed upon them by the general law as well as by the statutes of this State. The failure of the defendants to comply with the aforesaid statutory duties was negligence in and of itself as a matter of law, and rendered them liable for all losses thereby caused, independently of the neglect on their part of the nonstatutory duty to exercise in the governance and control and watchfulness of the business of the bank, ordinary care and diligence or that degree of care, diligence and skill demanded by the particular nature of the business intrusted to their management — in other words, care equal to the occasion. The statute, supra, made it the positive duty of the board of directors “to pass upon the business of the bank every month and to have at each meeting a record showing the then existing indebtedness and liability of each of the directors and officers of the bank. ’ ’ Had this duty been performed, the indebtedness-of the cashier would have been necessarily disclosed at every monthly meeting of the bank during the year for which defendants held office. They wholly disregarded' this specific requirement of the statute, as they did the further special requirement of [561]*561the statute making it their duty to compel the cashier to give the bond therein specified.
Except for these acts of negligence, the Middleton Bank could not have been defrauded of the aggregate amount of over $37,000, which the record shows was misappropriated in the manner aforesaid by the cashier during the term of office of the defendants. The amount of these conversions being a mere matter of computation and undenied by the defendants, and the responsibility of the negligent directors therefor being a mere legal conclusion, it necessarily follows that a verdict in their favor by the jury would not have been permitted to stand. The law is well settled in this State, that where a trial judge exercises his discretionary power of setting aside a judgment on the ground “that it is against the weight of the evidence,” his action in so doing will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. In which event, the exercise by the trial court of his power to grant a new trial although put upon a discretionary ground, is deemed to be unjudicial, and it is the duty of this court to reverse his ruling in that respect. [Foley v. Harrison, 233 Mo. l. c. 507, 508; Smoot v. Kansas City, 194 Mo. l. c. 532; Casey v. Transit Co., 186 Mo. l. c. 232; Fitzjohn v. Transit Co., 183 Mo. l. c. 78, 79, 80.]
Under the record in this case and upon consideration of the undisputed facts and the documentary evidence afforded by the books of original entries made by the correspondent banks at St. Louis and Kansas City, setting forth the amounts paid by them upon the forged drafts of the cashier, no verdict for the defendants could have been legally permitted to stand. The amount recovered by plaintiff was within the sum which he was entitled to recover in this case.
[562]*562The order of the trial court granting a new trial for the reason given is, therefore, set aside; and the cause remanded with directions to reinstate the verdict in favor of the plaintiff as of the date upon which it was rendered.
PER CURIAM. — The foregoing opinion of Bond, J., in division is adopted as the opinion of the Court in Banc.
Graves and Bond, JJ., concur in toto; Lamm, C. J., Broton and Baris, JJ., concur in separate opinion of Paris, J.; Woodson and Walker, JJ., dissent.