I dissent from the ruling of the majority of the court as stated in the second division of the opinion, for the following reasons: It is apparent from an examination of the entire charge of the court that the excerpt was limited solely to the issue made by the defendant's cross-action. The court's charge was divided into several orderly portions: (a) statement of the pleadings; (b) general principles of law applicable to the case; (c) instructions as to the plaintiff's alleged cause of action; (d) instructions as to the defendant's cross-action; (e) further instructions as to the plaintiff's alleged cause of action; (f) further instructions as to the defendant's cross-action; (g) further instructions as to the plaintiff's alleged cause of action with special reference to the preparation of a verdict in case the jury should find for the plaintiff; (h) further instructions as to the defendant's cross-action with special reference to the preparation of a verdict in case the jury should find for the defendant. The excerpt complained of was given solely in that portion of the charge as to the defendant's *Page 645 cross-action (d), and it could not reasonably be said that the jury understood it otherwise. The portion of the charge from which the excerpt objected to was taken was as follows: "And I charge you further, gentlemen, that, as to all the acts and omissions charged by the defendant against the plaintiff as being negligence, unless the negligent acts were the proximate cause of damage to the defendant they would not be considered by you in this case; for the only negligence, if there was negligence, that you would be authorized to consider in passing upon whether or not the defendant was entitled to recover against the plaintiff would be such negligence as was the proximate cause of damage to the defendant. I charge you further, gentlemen, that the law of the State as it exists at the time of this occurrence was to the effect that it was unlawful for a driver to operate a car upon the highways of this State without a driver's license. The court does not intimate what has or has not been proven. If you find that the plaintiff was operating his car in violation of the law to which I have called your attention, that would be negligence per se; that is, that would be negligence because the law says that it is negligence. And then, before the defendant could recover of the plaintiff, you would take the rules that I have given you and bear in mind that whatever negligence is charged by the defendant against the plaintiff, before the defendant can recover, such negligent acts as he charges and to which I have called your attention must be the proximate cause of his damage."
While the judge stated that it was unlawful for a driver to operate a car upon the highways without a driver's license, he plainly told the jury immediately before and immediately after making the statement, and in fact as a part of the same instruction, that the acts and omissions charged by the defendant against the plaintiff as negligence would not be considered by the jury in this case unless such negligence was the proximate cause of the damage to the defendant. I think this charge was plain and full enough for the jury to understand that they were not to consider the act of driving a car without a license, which was charged as negligence by the defendant against the plaintiff, as this did not cause the alleged damage to the defendant and was not the proximate cause of his damage. The jury did not award the defendant any damages on his cross-action, and I am of the opinion that the *Page 646 charge here excepted to was harmless to the plaintiff. The verdict was authorized, and I think the judgment should be affirmed, as no prejudicial error is shown by the plaintiff.