I am of the opinion that the judgment rendered in this action should be affirmed as to the defendants Herman Wunderlich, Jr., Moroni Heiner, and Frank Heiner. In my opinion, the judgment should be reversed as to the defendant Herman Wunderlich, Sr. We are all agreed that, if Wunderlich, Sr., is to be held liable in this action, it is upon the theory that he unlawfully encouraged his son while under 16 years of age to drive the automobile upon the occasion in question. The liability of Wunderlich, Sr., must be based upon an act of commission, and not upon one of omission. If Wunderlich, Sr., is to be held liable in this action, it is because of his own act, and not because of the act of his son.
Under the provisions of Comp. Laws Utah 1917, § 7919, any person who advises and encourages the commission of a crime is guilty of a crime. In my opinion, there is evidence *Page 28 in this case from which a jury might well find that Wunderlich, Sr., was guilty of the unlawful act of encouraging his son Herman to commit the misdemeanor of driving an automobile upon the public streets of Salt Lake City, contrary to law. If Wunderlich, Sr., advised and encouraged his son Herman to drive an automobile on the public streets of Salt Lake City, such act of advice and encouragement was negligence per se. The law is well settled that the risk assumed in the performance of an unlawful act is no greater than that assumed in the performance of a negligent act. In 22 R.C.L., § 91, P. 206, the law is thus stated:
"The modern rule is that, while the violation of a statute is negligence, yet to entitle the plaintiff seeking to recover damages for an injury sustained, he must show a causal connection between the injury received and the disregard of the statutory prohibition or mandate — that the injury was the proximate result."
It is so well established in our law as to be axiomatic that, before one can be held liable for his negligent or wrongful acts, it must appear that the negligent or wrongful act, when not amounting to a wanton wrong, was the proximate cause, or an efficient, proximate, contributing cause, of the injury complained of. In order that the act may be a legal proximate cause, it must appear that the injury was the natural and probable consequence of the negligent act. Expressed in different language, it must appear that the act complained of, either immediately or by setting other events in motion in a natural and continuous sequence, produced the injury, or contributed to the injury, and without which the result would not have occurred, and also that the injury ought to have been foreseen by the wrongdoer, although not in the precise form that it occurred. When there is a wanton wrong, it is not necessary to establish these elements of proximate cause, but in this case there is no evidence, nor is it contended, that Wunderlich, Sr., was guilty of an act amounting to a wanton wrong; that is, a wrong necessarily calculated to injure some one.
Another rule of law almost equally well estabished is that, *Page 29 so long as the evidence received in a given case is such that fair-minded men might honestly differ about the facts, or differ about the inferences to be drawn from such facts, the jury, and not the judge, is to determine the facts. That which is a proximate cause, or a proximate contributing cause, is, of course, an ultimate fact to be determined from the evidence. In this case, one of my Associates does "not see any causal connection between the fact that Herman was under the prescribed age and the injury." My other Associates seem to take the view that, if Wunderlich, Jr., is liable for the death of the Wilcox boy, then the causal connection between the age of Wunderlich, Jr., and the injury is so clear that, as a matter of law, Wunderlich, Sr., is likewise liable. These divergent views should be a convincing argument with my Associates that fair-minded men might and do differ about the causal connection between the age of Wunderlich, Jr., and the acts which caused the death of the Wilcox boy, and hence a question to be submitted to and determined by a jury.
In the case of Collins v. Liddle, 67 Utah, 242,247 P. 476, this court had occasion to consider the effect to be given our statute which prohibits one under 16 years of age from operating an automobile on the public streets. It is there held that the fact that the driver of the automobile is under the age of 16 years could, in a proper case, be material and proper for the jury to consider, under proper instructions in arriving at their verdict. Under the rule announced by a majority of this court in this opinion, the jury may not consider the fact that Herman Wunderlich, Jr., was under 16 years of age in arriving at their verdict as to Wunderlich, Sr. If the negligence of Wunderlich, Jr., was the proximate cause of the death of the Wilcox boy, and if Wunderlich, Sr. encouraged his son to drive the car on the occasion in question, then as a matter of law, the father is liable. I am unable to agree that such is the law. Logically, under such a rule, the father is precluded from showing that his son was a competent and careful driver. *Page 30
As affecting the question of the unlawful or negligent act of the father in encouraging his son to drive an automobile on the public streets of this state, I readily concede that the ability of the son to drive the automobile is immaterial. The Legislature has settled that question beyond controversy. But as affecting the question of proximate cause — of what Wunderlich, Sr., ought to have foreseen — the ability of Wunderlich, Jr., to operate an automobile is of primary importance. Negligence and proximate cause are separate and distinct ultimate facts, to be established by the plaintiff in an action as a requisite for a recovery. Evdence may be properly received as tending to establish or disprove the one, although it may not be proper as bearing upon the other. The mere fact that an act is unlawful does not make it actionable. Thus it is unlawful in this state to drive an automobile on the public streets without first obtaining a license. Clearly a father would not be liable for the negligence of a son while driving an automobile without license plates merely because the father encouraged his son to drive such automobile upon the public streets of this state. The reason that the father is not liable in such case is because there is no legal causal connection between the unlawful act and any injury that may occur while such a car is being so driven. The injury is not a natural and probable consequence of the unlawful act. Of course there is a distinction between a case where a father encourages a son of lawful age to drive an automobile without a license, and a case where a father encourages his son under the prescribed age to drive an automobile. The two cases are alike, however, in that both acts are unlawful, and hence negligent per se. The two cases are also alike, in that the injury would not have occurred, had not the father encouraged the use of the car, because it may be assumed that, except for the encouragement of the father, the cars would not have been at the place of the injury. The difference lies, if at all, in the probability or improbability of the unlawful act causing the injury. *Page 31
Civil liability, in the absence of evidence of a wanton wrong, attaches to those consequences, and those consequences only, that are the natural and probable consequence of the wrongful act which a person of average competence and knowledge, being in the situation of the person whose conduct is in question and having the same opportunity to observe, might be expected to foresee as likely to follow such conduct. 22 R.C.L. § 8, P. 121. A concrete illustration will serve to indicate what may be expected under the rule announced by the majority of this court in their opinion. A father has two sons, who borrow his automobile to go on a trip on their own account. One of the sons, A, is more than 16 years of age. The other B, is under 16 years of age. A is such an experienced and careful driver that it is not negligence on the part of the father to permit him to drive the automobile. B is a much more careful and experienced driver than is his brother, A. Under the rule announced by the majority of this court, the father would be held liable for the negligent act of B, if perchance B should be driving the automobile when an injury occurred, but would not be liable for the negligent act of A, if A were driving the car. When called upon to defend himself for the claimed negligent acts of his son B, he would not even be permitted to establish the fact that he had every reason to believe that a proper regard for the civil rights of others demanded that the automobile be driven by the more careful and experienced driver.
I do not believe that such is or should be the law. I am of the opinion that Wunderlich, Sr., can be held liable in this action only after the jury, under proper instructions, shall have found that Wunderlich, Sr., advised and encouraged his son to drive the automobile on the occasion in question, and also that, when Wunderlich, Sr., so encouraged his son to drive the automobile, he (Wunderlich, Sr.) should have foreseen that an injury would probably result; that in determining such question the ability or lack of ability of Wunderlich, Jr., to operate an automobile is a proper matter *Page 32 of inquiry. Nor does a law prohibiting a person under 16 years of age from driving an automobile on the public streets of this state justify a judicial construction changing the common law which requires a plaintiff to establsh as facts before a jury the elements of proximate cause as a condition precedent to his right of recovery. I agree with Mr. Chief Justice THURMAN and Mr. Justice STRAUP that the giving of instruction No. 7 was prejudicial error, and for that reason the judgment against Herman Wunderlich, Sr., should be reversed, and a new trial granted.