The majority opinion concedes that even if there was any violation by Ginther of the positive orders of his employer (in regard to carrying passengers or drinking while on duty) such violation had no causal relation to the accident and therefore is without legal significance. It is said, however, that he "removed himself from the course of his employment by reason of his unauthorized delegation of the duty entrusted to him" in that he allowed Romigh (who was also a truck driver for Ginther's employer) to operate the truck on its homeward journey. In order to test the correctness of this ruling we must first, of course, ascertain what the "duty" was that was "entrusted to him," and what his "employment" was from the course of which he is said to have "removed himself." He was directed on the evening in question to make a delivery of some envelopes. This task he performed, and it then became his duty to see that the truck was returned to his employer's garage. He was so engaged when the accident happened. It is true that he had relinquished the actual mechanical operation to Romigh, but he, Ginther, remained in charge, continuing to sit on the front seat and superintending Romigh's driving. There is not a word in the testimony to indicate that in directing the operation instead of himself guiding the *Page 65 wheel he was taking himself outside the duties or the scope of his employment. On the contrary, the Workmen's Compensation Board found as a fact that "there was no positive instruction [to Ginther] not to permit others to drive," and Romigh testified that Ginther was the "boss" whenever the employer was absent and had frequently ordered him, Romigh, to drive a truck. Under these facts it would seem clear that, in the words of Judge BALDRIGE, who wrote the opinion of the Superior Court. "It cannot be said that he [Ginther] had . . . abandoned his employment and become a trespasser so that he was not engaged in the furtherance of his employer's business at the time of the accident."
I would affirm the judgment of the Superior Court which upheld the award made by the Workmen's Compensation Board.
Mr. Chief Justice MAXEY concurs.