(concurring in part and dissenting in part). I agree with the decision of the majority that the judgment of the Appellate Division be affirmed insofar as it concludes that there is no coverage under the State Earm policy resting upon permission, express or implied, given by Busby to Johns.
As to the so-called “added issue”, now projected for the first time, I concur entirely with what is said by Judge Con-*183ford in Part IY of Ms opinion. I, too, would be willing to entertain this issue even at this late date and despite the procedural inadequacies mentioned, if it had merit or substance, 'but as Judge Oonford’s opinion conclusively demonstrates, it has neither one nor the other. The fact finder might readily decide that Busby’s conduct was such as to constitute an implied grant of permission to Kay to drive his, Busby’s, car. But on this record the chain of permission definitely stops there. For Johns to qualify as a covered subpermittee there must be something, be it words or conduct, on the part of Kay, which is consciously responsive to the grant of permission he has received. He must be subjectively aware that he has permission and must then act, verbally or otherwise, in a manner responsive to that grant. There is nothing in the record that would in any way support even an inference that such was here the case. For do I think there should be a remand to take further testimony. The relevant factual sequence was thoroughly covered at the trial.
As to the nonowned automobile clause in the Zurich policy, I dissent from the majority holding and would affirm the decision that there is no coverage, substantially for the reasons given by the Appellate Division. 118 N. J. Super. 84, 93-95 (1972).
I do not quarrel with the conclusion of the majority that the language of the policy describing coverage as to non-owned vehicles is broader than that of the omnibus clause. I also agree that whether a driver reasonably believes he has permission to operate a particular automobile depends upon that driver’s subjective state of mind, examined in the light of his social milieu and affected, doubtless, by the mores of the peer group with whom he associates. Accepting these postulates, I nevertheless conclude that a fact-finding that Johns reasonably believed he had permission to drive Busby’s ear could not be supported by anything in the record. Such inferences as may be drawn either way — and they are gossamer thin — tend rather to a conclusion that Johns knew full well he did not have permission.
*184I would in all respects affirm the decision of the Appellate Division.
For reversal as lo Slate Farm Mutual and Zurich American — Chief Justice Weiftraub, Justices Jacobs and Proctor, and Judge Sullivan — 4.
For affirmance as to State Farm Mutual, reversal as to Zurich American — Justice Hall, and Judge Cofeord — 2.
For affirmance — Justice Mouftaif — 1.