If the majority opinion was reversing this cause and remanding for new trial on the error assigned as to the general charge, it would present a serious question. However, that is not the basis for the judgment, and the majority decision requires that final judgment be entered for the defendant.
In this situation the one and only controlling question in this case is whether plaintiff's decedent, at the time of the injury from which he died, was acting in the course of his employment.
Mr. Eyman had, before the occurrence causing his death, on occasions employed his automobile to take groceries and merchandise from a warehouse in Columbus to the store in which he worked and to deliver groceries from the store to customers in Columbus. This had occurred with such frequency as to permit the inference that such trips were in the regular course of Eyman's employment. On the night under consideration, he had groceries in his automobile ordered by a customer of the store and to be paid for by the customer when they were brought to her home. It appears that the customer was Mr. Eyman's wife and the delivery was to his own home. This circumstance, however, would not change his relation to his employer, if as a matter of fact, the delivery at the time and place was made in his capacity as an *Page 295 employee of Mr. Fisher. That it was so made is, in my judgment, a permissible inference to be drawn from the evidence. True, the jury may well have found that the delivery was made by Eyman solely for his own accommodation or for that of his wife and therefore as her agent. But this conclusion is not required as a matter of law. Nor is it required because at the time of the injury Mr. Eyman was also attending to his own business as well as that of his employer, as the two relationships were not inconsistent. The judgment should be affirmed.