WOODSON, J.
The plaintiff brought this suit in the circuit court of the city of St. Louis, against the defendants to recover $10,000' damages for personal injuries received by him through the alleged negligence of the defendants.
A trial was had in the circuit court which resulted in a judgment for the plaintiff, for the sum of $2500.
After moving unsuccessfully for a new trial, defendants appealed the cause to the St. Louis Court of Appeals. The majority opinion of that court, written by Judge Goode., reversing the judgment of the circuit court, was dissented from by Judge Noutoni, and as a [120]*120result thereof the cause was transferred to this court; and upon reaching- here it was assigned to Division No. 2, and there shared the same fate as it did in the Court of Appeals, and because of the latter dissent the cause was transferred to Court in Banc.
The case was again argued in Banc and after submission it fell to my lot to write the opinion of the court.
After having carefully read the record and briefs of counsel, as well as the various opinions written in the Court of Appeals and in Division No. 2 of this court, I have reached the conclusion that the majority opinion written by Judge Goode in the Court of Appeals correctly declares the law and properly applies it to the facts of the ease, and his opinion, with certain additions to be made, will be adopted as the opinion of this court, and is as follows (formal parts omitted):
“Defendants are partners engaged in the manufacture of carriages. In their service was Joseph Kuhr, who was in charge of a freight wagon, his task being to drive the wagon and manage the helpers or crew which accompanied it. The wagon was a large vehicle, weighing when unloaded four thousand pounds, and having a bed very much wider than the usual width of wagon beds. One use of this vehicle was to haul surreys, buggies and other vehicles in which defendants dealt, from their factory or warehouse to the shipping-stations of various railway companies in St. Louis, for shipment elsewhere. Usually six or seven crated vehicles were loaded in the wagon by the crew who went with it, hauled to the depot and unloaded there. Kuhr had command over employees who assisted in loading and unloading the wagon and accompanied it from the warehouse or factory to the depot, and besides directing these employees, he hired them. Three or four men were required to carry on the work of the wagon. A crew was not kept in regular employment, but when one was needed Kuhr would pick up and hire by the hour two or three men who were available and in the habit [121]*121of doing these odd jobs. The compensation allowed was seventeen and one-half cents an hour while they were at work. One of these men was plaintiff and he had been hired off and on four months; sometimes by Been, a clerk in one of defendants ’ warehouses, but oftener by Ruhr himself. Ruhr had also employed-other men when he needed them to help with the wagon, and his right to hire such help was recognized by defendants. When he had finished the job for which he had employed a crew, he would give the men their time and they would go to the office and get their money. On the day of the accident Ruhr had to haul some vehicles from the factory to a railway depot for shipment and needing a relay of men to assist in the work, told plaintiff, who appears to have been waiting about the factory in the hope of a job, to hunt up another man named Tom Malloy, whom Ruhr was in the habit of using for similar work, and hurry back, as there was not much time in which to get the load into the car. Plaintiff found Malloy, and Ruhr and these two men loaded the wagon and started to the depot, or rather to the John Deere Buggy Company’s warehouse or plant, through which the vehicles had to be carried to load them into the car. Their course took him in the vicinity of the shop where Been, the shipping clerk, was in charge. In the wagon was an implement known as a pinchbar, which Ruhr wished to leave at that shop; so he told plaintiff to take the bar to the shop, and meanwhile he (Ruhr) would drive across certain railway tracks' at the point and wait until plaintiff returned. Plaintiff took the bar as told, and on coming back to the wagon attempted to climb in the.front end where he had been riding and was expected to ride. Just as plaintiff planted his foot on the hub of the front wheels and rose, throwing his weight on the hub, Ruhr started the team, throwing plaintiff off the wagon on the street and injuring him seriously. Thus runs the evidence for plaintiff. In defense it is said Ruhr was a fellów-servant of plaintiff/ [122]*122•or, if a vice-principal part of the time, was a fellow-servant when he started the wagon and threw plaintiff off. This is the charge of negligence:
“ ‘Plaintiff says that on the said 29th day of January, 1907, and while in the performance of his duties as an employee of defendants, he was getting upon said wagon, and while he was upon one of the wheels of said wagon, the said “Joe” who was then and there acting for defendants and exercising his power to superintend, direct and control the operation of the said wagon, negligently and carelessly caused said wagon to he drawn forward, without warning or notification to plaintiff, although the said “Joe” knew, or by the exercise of proper care might have known, that plaintiff was on the wheels of said wagon and about to climb upon said wagon. Plaintiff states that in consequence of the negligent and careless movement of said wagon as aforesaid he was thrown violently to the ground, and his right leg and right side bruised and the sight of the right eye permanently destroyed and causing him great bodily pain.’
“The court refused to direct a verdict for defend.ants and refused to declare Kuhr was a fellow-servant •of plaintiff, at the instant of the accident. At defendants’ request the jury was told no presumption of negligence on the part of defendants arose from the fact of the accident, but the burden was on plaintiff to show he was injured because of defendants’ negligence in •starting while plaintiff was attempting to get into the wagon; that it was not negligence to start if defendants •did not, or by the exercise of ordinary care would not, have known plaintiff was attempting to get in at the time; that if plaintiff slipped and fell, but not as the result of any act of defendants or its agents or servants, the verdict must be for defendants. On the issues of whether or not Kuhr was a vice-principal usually, and whether he was acting as vice-principal or fellow-serv.ant when he drove forwrd just as plaintiff was stepping [123]*123into the wagon, the court gave these instructions, to which defendants excepted:
‘ ‘ ‘ The court instructs the jury that if you find and believe from the evidence that Joseph Ruhr was employed by defendants and'was a foreman in charge of the team and wagon in question, and the man employed on and about said wagon, and by virtue of his employment and position had immediate control and direction •of plaintiff and others engaged in working on and about said wagon and had authority to direct and control plaintiff’s work, then.the said Joseph Ruhr was a vice-principal and was not a fellow-servant of-plaintiff.
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WOODSON, J.
The plaintiff brought this suit in the circuit court of the city of St. Louis, against the defendants to recover $10,000' damages for personal injuries received by him through the alleged negligence of the defendants.
A trial was had in the circuit court which resulted in a judgment for the plaintiff, for the sum of $2500.
After moving unsuccessfully for a new trial, defendants appealed the cause to the St. Louis Court of Appeals. The majority opinion of that court, written by Judge Goode., reversing the judgment of the circuit court, was dissented from by Judge Noutoni, and as a [120]*120result thereof the cause was transferred to this court; and upon reaching- here it was assigned to Division No. 2, and there shared the same fate as it did in the Court of Appeals, and because of the latter dissent the cause was transferred to Court in Banc.
The case was again argued in Banc and after submission it fell to my lot to write the opinion of the court.
After having carefully read the record and briefs of counsel, as well as the various opinions written in the Court of Appeals and in Division No. 2 of this court, I have reached the conclusion that the majority opinion written by Judge Goode in the Court of Appeals correctly declares the law and properly applies it to the facts of the ease, and his opinion, with certain additions to be made, will be adopted as the opinion of this court, and is as follows (formal parts omitted):
“Defendants are partners engaged in the manufacture of carriages. In their service was Joseph Kuhr, who was in charge of a freight wagon, his task being to drive the wagon and manage the helpers or crew which accompanied it. The wagon was a large vehicle, weighing when unloaded four thousand pounds, and having a bed very much wider than the usual width of wagon beds. One use of this vehicle was to haul surreys, buggies and other vehicles in which defendants dealt, from their factory or warehouse to the shipping-stations of various railway companies in St. Louis, for shipment elsewhere. Usually six or seven crated vehicles were loaded in the wagon by the crew who went with it, hauled to the depot and unloaded there. Kuhr had command over employees who assisted in loading and unloading the wagon and accompanied it from the warehouse or factory to the depot, and besides directing these employees, he hired them. Three or four men were required to carry on the work of the wagon. A crew was not kept in regular employment, but when one was needed Kuhr would pick up and hire by the hour two or three men who were available and in the habit [121]*121of doing these odd jobs. The compensation allowed was seventeen and one-half cents an hour while they were at work. One of these men was plaintiff and he had been hired off and on four months; sometimes by Been, a clerk in one of defendants ’ warehouses, but oftener by Ruhr himself. Ruhr had also employed-other men when he needed them to help with the wagon, and his right to hire such help was recognized by defendants. When he had finished the job for which he had employed a crew, he would give the men their time and they would go to the office and get their money. On the day of the accident Ruhr had to haul some vehicles from the factory to a railway depot for shipment and needing a relay of men to assist in the work, told plaintiff, who appears to have been waiting about the factory in the hope of a job, to hunt up another man named Tom Malloy, whom Ruhr was in the habit of using for similar work, and hurry back, as there was not much time in which to get the load into the car. Plaintiff found Malloy, and Ruhr and these two men loaded the wagon and started to the depot, or rather to the John Deere Buggy Company’s warehouse or plant, through which the vehicles had to be carried to load them into the car. Their course took him in the vicinity of the shop where Been, the shipping clerk, was in charge. In the wagon was an implement known as a pinchbar, which Ruhr wished to leave at that shop; so he told plaintiff to take the bar to the shop, and meanwhile he (Ruhr) would drive across certain railway tracks' at the point and wait until plaintiff returned. Plaintiff took the bar as told, and on coming back to the wagon attempted to climb in the.front end where he had been riding and was expected to ride. Just as plaintiff planted his foot on the hub of the front wheels and rose, throwing his weight on the hub, Ruhr started the team, throwing plaintiff off the wagon on the street and injuring him seriously. Thus runs the evidence for plaintiff. In defense it is said Ruhr was a fellów-servant of plaintiff/ [122]*122•or, if a vice-principal part of the time, was a fellow-servant when he started the wagon and threw plaintiff off. This is the charge of negligence:
“ ‘Plaintiff says that on the said 29th day of January, 1907, and while in the performance of his duties as an employee of defendants, he was getting upon said wagon, and while he was upon one of the wheels of said wagon, the said “Joe” who was then and there acting for defendants and exercising his power to superintend, direct and control the operation of the said wagon, negligently and carelessly caused said wagon to he drawn forward, without warning or notification to plaintiff, although the said “Joe” knew, or by the exercise of proper care might have known, that plaintiff was on the wheels of said wagon and about to climb upon said wagon. Plaintiff states that in consequence of the negligent and careless movement of said wagon as aforesaid he was thrown violently to the ground, and his right leg and right side bruised and the sight of the right eye permanently destroyed and causing him great bodily pain.’
“The court refused to direct a verdict for defend.ants and refused to declare Kuhr was a fellow-servant •of plaintiff, at the instant of the accident. At defendants’ request the jury was told no presumption of negligence on the part of defendants arose from the fact of the accident, but the burden was on plaintiff to show he was injured because of defendants’ negligence in •starting while plaintiff was attempting to get into the wagon; that it was not negligence to start if defendants •did not, or by the exercise of ordinary care would not, have known plaintiff was attempting to get in at the time; that if plaintiff slipped and fell, but not as the result of any act of defendants or its agents or servants, the verdict must be for defendants. On the issues of whether or not Kuhr was a vice-principal usually, and whether he was acting as vice-principal or fellow-serv.ant when he drove forwrd just as plaintiff was stepping [123]*123into the wagon, the court gave these instructions, to which defendants excepted:
‘ ‘ ‘ The court instructs the jury that if you find and believe from the evidence that Joseph Ruhr was employed by defendants and'was a foreman in charge of the team and wagon in question, and the man employed on and about said wagon, and by virtue of his employment and position had immediate control and direction •of plaintiff and others engaged in working on and about said wagon and had authority to direct and control plaintiff’s work, then.the said Joseph Ruhr was a vice-principal and was not a fellow-servant of-plaintiff.
“ ‘The jury are instructed that if the negligence of a foreman arises out of and is the direct result of the exercise of authority conferred upon him by the master, as a foreman, the master will be liable for such negligence, but if the negligence complained of consists of some act committed or done by him which relates to his duties as a co-laborer with those under his control, and which might just as readily have happened with one of them having no such authority, their employer will not be liable. If you find and believe from the evidence that plaintiff on or about the 29th of January, 1907, was in the employ of defendants and that while so employed and while acting in the line of his duties he was getting upon the wagon in question and while upon one of the wheels of said wagon, said wagon was started forward by the driver Joseph Ruhr and that plaintiff ■did not know that said wagon was about to be moved .and that no notice- or warning was given him of the moving of said wagon and that the starting forward of said wagon was the direct cause of the injuries to plaintiff, and if you further believe from the evidence that the said Joseph Ruhr was a foreman or vice-principal of defendants as defined in instruction No. 1, and that in starting said wagon forward the said Joseph Ruhr was in the exercise of his authority and not merely in the discharge of his duties as a co-laborer [124]*124of plaintiff, and if you further find that at the time of receiving said injuries, plaintiff was himself exercising ordinary care and prudence, then your verdict will be for the plaintiff.’
“A verdict for $2500' was returned in plaintiff’s favor and judgment having been rendered in accordance with it, this appeal was taken.
“Kuhr was foreman of the wagon crew and the other members were under his authority. The wagon was, so, to speak, a detached place of operation where part of defendants’ business was carried on under Ruhr’s control. He was empowered to employ men for his crew, regulate their work and let them go at his pleasure. Those facts were presented in the first instruction, and the jury were told if they found them to exist, Kuhr was a vice-principal and not a fellow-servant of the plaintiff. The court did not err in this ruling. [Miller v. Railroad, 109 Mo. l. c. 357; Russ v. Railroad, 112 Mo. 45; Edge v. Electric Ry. Co., 206 Mo. 471.] We will say all the instructions strike us as accurate and fair, and if the case should have gone to the jury on the questions of whether Kuhr was a vice-principal or fellow-servant, and in which capacity he was acting at the moment of the accident, the issues were well presented. The main part of Ruhr’s task was to drive, the wagon and team. He did this as well as control the hauling and giving orders to" the men. Hence he discharged two-fold functions, and the principal inquiry is whether the entire evidence proved he was acting as a common member of the wagon crew at the instant he drove forward and caused plaintiff’s hurt, or as vice.-principal. Counsel for defendants insist the evidence shows beyond inference to. the contrary, the starting of the wagon was an act incident to his ordinary duties as driver, and in no sense an exercise of his authority as foreman. The leading opinion in this State on what is denominated the dual capacity doctrine, is Fogarty v. Transfer Co., [125]*125180 Mo. 490, wherein it appeared the driver of a freight wagon had been injured, by the negligent act of a foreman. Many of the facts were like those we have here, but one distinguishing circumstance appeared. Said foreman took the lines from Fogarty and undertook to back the wagon himself; thereby assuming, by virtue of the authority vested in him as foreman to supersede the regular driver in the performance of a task the foreman had not been performing beforehand in the course of which he hurt the driver. In the case at bar, when Ruhr started the team forward and hurt plaintiff, he simply continued to drive; for, properly considered, he was driving while he held the lines as the wagon and team stood waiting for plaintiff. It is plain the careless act of the foreman in the Fogarty case wears more the appearance of an exercise of mastery than does Ruhr’s as the opinion shows (1. c. 512); and hence it does not follow the capacity in which Ruhr acted was for the jury, merely because the Supreme Court held the question of capacity was for the jury in the Fogarty case. In Bien v. Transit Co., 108 Mo. App. 399, this court approved the submission of a like question on the authority of the Fogarty opinion, and it is charged now by counsel for the defendant that in doing so we misled the court below in the present ease into submitting to the jury what was really a court matter. The facts of the Bien case regarding the magnitude and complication of the affairs controlled by the foreman who figured therein are so unlike those before us as to put that authority out of point; but we seize the opportunity to call counsel’s attention to the fact that the Supreme Court in Hollweg v. Tel. Co., 195 Mo. 149; and Edge v. Railroad, 206 Mo. 471, 494, approved and quoted from the opinion in the Bien case. Counsel say we misconceived the import of the Fogarty case in holding it was applicable to an accident that had happened in this State, because the Supreme Court held the question was a jury one in obedience to the law of Illinois [126]*126where the Fogarty accident happened. This contention is unsound. The Supreme Court showed in the Fogartyopinion (1. c. 511) the law of Illinois and the law of Missouri as regards when the issue of vice-principal or fellow-servant is for jury or court, are hot different. The courts of Missouri and Illinois hold alike on this matter, and that the question is for the jury when the facts are in dispute or reasonable men may come to different conclusions from them, and is for the court when the evidence will permit but one conclusion. [Norton Bros. v. Nadebok, 190 Ill. l. c. 599.] What we have said supra is more by way of answer to the attack of counsel on the opinion in the Bien case than in decision of this one.
“Some of the early Missouri opinions either explicitly or implicitly refused to determine the master’s liability for an injury to an employee by a co-employee, upon the theory that a superior servant or foreman might do twofold duties,- and the master be liable for his carelessness while engaged in the performance of one class of duties, because the superior servant was then exercising the master’s authority, and not be answerable in the other class, when he was performing duties common to him and the injured servant. [Hutson v. Railroad, 50 Mo. App. 300; Hughlett v. Lumber Co., 53 Mo. App. 87; Dayharsh v. Railroad, 103 Mo. 570; Russ v. Railroad, 112 Mo. 45.] We will not examine the facts and doctrine of those cases, because the dual-service theory is established as the law of the State by the recent decisions. [Fogarty v. Transfer Co., supra.] Lawyers disagree in their opinions about the soundness of that doctrine, but if it is to be a rule of decision, the facts of the present ease invoke it with peculiar force. Unlike the foreman in the Bien case, Kuhr was charged with the regular performance of common duties; wherein he was a co-worker with the wagon crew. The rule is more acceptable in such a case than where the foreman or vice-principal was not charged with any service com[127]*127mon to other employees, hut of his own volition undertook an act of common service and in performing it-hurt a workman. Long reflection has failed to reveal how Kuhr’s act of driving forward involved an exercise-of authority. It seems to us to have been beyond doubt an act of common service which was done in the course of his ordinary task. We cannot imagine a case wherein a person who is both foreman and common employee could do an act more clearly pertaining to the latter capacity rather than foremanship, than was Kuhr’s starting the team. The causal act of Kuhr was-within the description in Bane v. Irwin, 172 Mo. 306, 317, of what is a fellow-servant’s act though done by one who is foreman, too. ‘We agree with counsel for defendant, “It is the act and not the rank of the vice-principal which determines whether two employees are-fellow-servants.” In this case the acts of Gibbs were the acts of the master. It is true that, according to the evidence, Gibbs at times did the work of a servant in loading and firing the shots, and had the injury occurred while he was performing a servant’s duty, he and plaintiff would have been fellow-servants, but it is clear that the negligence in this case was the negligent . order to plaintiff to return to the-dangerous place and fire the remaining shot and the injury was the consequent result of that order, and not the negligent loading and tamping of the shot. While Gibbs acted in a dual capacity, the injury here resulted from the order in making which he represented the master.’ We are cited to Hollweg v. Tel. Co., 195 Mo. l. c. 166, as an authority for plaintiff. In that case the foreman of a department caused an injury to a fellow employee, by making the place where the latter worked' unsafe during the-temporary absence of the regular operator of the machine. The foreman attempted to operate the machine,, left a block of wood on the table and this block was the cause of the injury. Said case may rest on the ground [128]*128that the master’s non-delegable duty to use ordinary •care to furnish the servant a safe place to work, was broken. The Dayharsh case was distinguished on the ■ same ground in the Fogarty opinion which examines and discriminates the various Missouri decisions.”
In addition to what has .been said by the Court of Appeals regarding’ the law of this case,. I wish to add the following observations:
The record shows that the main duty of Kuhr, in fact practically all of his duties, were that of a common laborer, engaged to haul and deliver buggies and carriages to various depots in the city of St. Louis, but ■occasionally, when extra help was' needed to unload the buggies and carriages, either he or one Been, a clerk in the office of the defendants, would employ one or two persons for a few hours for that purpose, which in all probability did not take more than five minutes a week of Kuhr’s time, and all the remainder of his time and duties, as previously stated, were devoted to hauling and delivering the vehicles mentioned.
The legal proposition here presented is, did the ■devotion of that five minutes, or whatever number they may have been, in occasionally employing those men, ■constitute Kuhr a vice-principal in the control and management of that entire business ? I think not.
Suppose Kuhr had never employed any men at any time, but they had always been employed by Been exclusively, could it then be said that Kuhr was a vice-principal simply because he was the driver of the team and assisted in unloading the vehicles ? I again say no; and if that is not true, then every employee would be a vice-principal.
Again suppose in this particular instance Been had ■employed the plaintiff instead of Kuhr, would that fact have constituted the laborer a vice-principal? I think not; no more than where a farmer employs two men to gather corn and directs one of them to drive the team and wagon. In each case they would be fellow-servants [129]*129and that relation would not be changed even though the other party had been employed by the driver, at the request of the farmer, except as to the act of employment. In all other respects they would be fellow-servants. I think this cannot be seriously questioned; and by parity of reasoning the same rule should and does apply to the case at bar. The plaintiff and Kuhr, at the time the former was injured, were engaged in a common employment, namely, the hauling and delivery of the carriages, and the mere fact that Kuhr had some hours before employed plaintiff to assist him in doing that common work did not change their legal relations.
The case of Dayharsh v. Railroad, 103 Mo. 570, cited by Judge Goode., is not in point, as he properly ruled, for in that case the hostler in charge of the roundhouse and whose negligence caused the injury was unquestionably, and at all times, a vice-principal. But as previously stated, in this case, there was not a semblance of such relation.existing: between plaintiff and Kuhr, nor had there ever been except the brief moment that was taken by the latter to request the former to assist him in hauling and unloading said vehicles.
I am, therefore, clearly of the opinion that the majority opinion of the Court of Appeals correctly declared the law of the case, and so believing, the judgment of the circuit court should be reversed.
Graves, Faris and Bond, JJ., concur; Walker, J., dissents in separate opinion in which Lamm, G. J., and Brown, J., concur.