James v. Aetna Life & Casualty ( 1976 )

HATHAWAY, Judge

(specially concurring).

The trial court and the majority conclude that Robles was not within the scope of the permissive use because of the time of the use. This court-imposed time restriction is at odds with the uncontroverted evidence, namely the testimony of Anthony Adams, vice president of Adams Tree Service, who authorized the use and answered affirmatively that no time limit was placed “ . . .on when he was to be home, nor did the rules say anything about the time limits in which he was to go to and from his home . . ” The uncon-troverted evidence is that the vehicle was in a normal home-bound route at the time of the accident and Robles’ statement confirms that he was in route home.

I reach the same result as the trial court and the majority on the portion of his statement that he had “ . . . about 4 or 5 beers between 5 :30 and 12:30 p. m. [sic]” Company Rule 5 provides:

“No one may drive a company vehicle after consuming alcoholic beverages for at least two hours after consumption.”

Robles was in violation of this rule and was, therefore, not a permissive user at the time of the accident. For that reason I would affirm.