(dissenting). I agree with the majority insofar as General Accident Insurance Compan v is concerned, and would affirm the Appellate Division. However, as regards Guenther, I would as well affirm.
The basic theory upon which Yernon Lynch sought to hold Guenther liable is unclearly and nebulously articulated in the third-party complaint and the pretrial order. However, the trial court, Appellate Division and counsel apparently conceived that the issue involving Guenther was that stated in the brief of Lynch, filed in this court, “Is Martin Guenther personally liable for his failure to obtain requested insurance coverage, or alternatively, for his failure to warn the applicant that she was not insured ?” The primary issue, restated, is comparatively simple, i. e., “Did Tomilto Lynch (now Jones) apply for automobile liability insurance which would have extended coverage to her father, did she obtain such a policy, did Guenther advise her that such insurance was not available to her, and was such insurance available to her ?”
On motion for judgment at the end of the plaintiff’s case we must accept the evidence submitted on his behalf as true and accord him the benefit of all legitimate inferences that may be drawn therefrom. I proceed to so assay the testimony. Tomiko Jones was the sole witness as to the circumstances *484surrounding her application for insurance. As noted in the majority opinion, her testimony was “not as clear as it might be.” However, what here follows may be fairly inferred. She testified that she desired public liability insurance which would cover her and anyone operating the car with her permission. She expressed this in a homely fashion by stating that she wanted insurance on “this 1956 Eord.” Guenther advised her that she could obtain only a nonowner policy restricted to insuring her operation of the car, so that, as she stated, “I could drive safely.” She consented to accept a policy so limited for which she eventually paid a premium of $13.44.
As the evidence stands, then, it is inferable that Mrs. J ones requested a policy which would cover her father’s operation of the car, but because of Guenther’s advice that no such policy was available to her she consented to accept a policy under which only she was insured. For plaintiff to succeed in holding Guenther liable on the above thesis, he should have additionally proved that Guenther’s advice was erroneous, i. e., a policy of the nature requested was actually available. Otherwise stated, that Guenther was negligent in not obtaining the type of policy which he knew she sought from him and which was actually available to her. The record is void of any such proof. Hence, there was lacking an essential element in plaintiff’s case, for absent such proof there was no demonstration that Guenther’s advice was faulty and that his conduct was negligent.
The proof is clear that Guenther advised Tomiko Jones of the type policy she was receiving. The alternative cause of action was therefore as well not sustained.
Hall, J., concurring in result.
For reversal in pari — Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino — 6.
For affirmance — Justice Haneman — 1.