This action was brought by plaintiff to recover damages for the wrongful death of his son, 8 years of age, alleged to have been caused by the negligence of the defendants. The case was tried to a jury. At the conclusion of the plaintiff's evidence the court granted a nonsuit as to the Heiners, and *Page 7 at the conclusion of all the evidence submitted the case to the jury as to the Wunderlichs. A verdict was returned against both of the Wunderlichs, and from the judgment entered thereon both appeal. The plaintiff also appeals from the judgment entered on the nonsuit in favor of the Heiners.
Heretofore, by a divided court, an opinion was rendered, affirming the judgment of the court below. On a petition filed by the Wunderlichs, a rehearing was granted, and the case reargued and resubmitted. The opinions heretofore filed are now withdrawn, and the case determined in accordance with the opinions now filed.
Herman Wunderlich, Sr., and Herman Wunderlich, Jr., are father and son. Herein the former will be referred to as Wunderlich and the latter as Herman. Moroni Heiner and Frank Heiner are father and son. In the complaint it is alleged that at the time of the accident both sons were minors under 16 years of age; that prior thereto their fathers purchased an automobile for the use of the minors, knowing they intended to use it in Salt Lake City, where the accident occurred, and where by an ordinance of the city and by statute it was unlawful for any person under 16 years of age to drive or operate an automobile on any public street or highway, and that they knew the minors drove the car on public streets of the city with the consent and approval of the parents; that the minors "both were and each was inexperienced in the driving of an automobile, and did not understand how to operate or drive an automobile in a careful or prudent manner, all of which was known to the said Herman Wunderlich and the said Moroni Heiner, and both of them"; that at the time of the accident the minors negligently and carelessly, and in violation of law, drove the automobile after dark without any lights on a public street, failed to observe a proper lookout and to sound the horn of the automobile, or give any warning of its approach, and because thereof, "and by reason of the inexperience and lack of knowledge of said minors as to the driving and *Page 8 operating of an automobile," it was run and operated by them against plaintiff's son, and so injured him that he died three days thereafter. The ordinance also was pleaded, which provided that:
"It shall be unlawful for any person under 16 years of age to operate or drive any vehicle upon any street of Salt Lake City."
Our statute also provides that:
"No person, whether resident or nonresident of this state, under sixteen years of age, shall operate a vehicle or tractor upon any highway of this state." Laws Utah 1921, p. 235.
At the time of the accident Herman was 15 years and 11 months of age. Frank Heiner was about the same age. Each lived with his parents. Wunderlich, in Salt Lake City, owned and operated a service station, selling gasoline, oils, and automobile supplies, and making minor repairs on automobiles. Herman was employed at the station, selling oils and gasoline, greasing cars, and making minor repairs on them. That he was experienced in handing cars, had good knowledge of the mechanism of them, and was an experienced and capable driver, is not disputed. About a month or two prior to the accident, at the request of the boys, Wunderlich sold the car, a used car which he had for sale, to Herman, Frank Heiner, and a young boy named Pinney, all under 16 years of age. Soon thereafter Pinney sold his interest in the car to Herman and Frank. After the car was delivered to the boys, the car was kept part of the time in the garage of Wunderlich at his residence, and part of the time at the garage and residence of Moroni Heiner. The car was used exclusively by Herman and Frank, by one or the other, or by both, solely for their own pleasure, and at no time for the use or benefit of either parent or of his family. The car belonged to the boys, was purchased by them with moneys earned by them, and was solely used by them whenever they desired, without asking permission or consent of their parents or of any one. *Page 9
Wunderlich testified that, when he sold the car to the boys, he expected they would drive the car whenever and whereever they wanted to use it, and that he had no control over that; that he knew the car was kept at his house part of the time, and part of the time at the house of Moroni Heiner; that he discussed with Moroni Heiner the advisability of taking out liability insurance for the protection of the boys, and that he and Moroni Heiner procured the insurance, each paying one-half of the premium; that the license of the car was taken out by them for the boys in the name of "Frank Heiner Co."; that, after the car was delivered to the boys, neither he nor Moroni Heiner had anything to do with it, except getting the license and taking out the insurance; and that he saw the boys use the car and drive it on public streets of the city.
Moroni Heiner testified that he was familiar with the purchase of the car, and that it was purchased by the boys about a month before the accident; that he knew they were driving the car on public streets; that the car was kept part of the time at his house and part of the time at Wunderlich's house; and that the car was driven at all times by the boys with his knowledge. He further testified he objected to his son getting the car; that he —
"tried to talk him out of it, but he had his mind set. I did not prevent him from driving it. I did not forbid him any more. He had driven my car when he was out with me."
On the evening of May 13, 1924, the day in question, Herman went to the Heiner home, where the car was. He and Frank took it and drove around town, exclusively for their own pleasure, with two other boys. After driving around a while, and stopping at a store in the southern part of the city, it was discovered that one of the front lights of the automobile "flickered" — did not burn brightly. Herman and Frank between 8 and 9 o'clock, and after dark, started to drive the car to the service station to fix the light; Herman driving the car. They proceeded a short distance north *Page 10 on the east side of Fifth East street in the city, a paved and much-traveled street, to a point opposite Ramona avenue, running east and west. There is a conflict in the evidence as to whether Frank was with Herman when the car reached Ramona avenue. There is evidence to show that he left the car before they reached that point and went home, leaving Herman to drive the car alone from there to the service station. There, however, also is evidence to show that Frank was in the car with Herman at the time of the accident. When the car reached Ramona avenue, it was stopped by Herman to permit automobiles to pass south along the west side of Fifth East street before he turned west and entered the avenue. Crossing Fifth East street and entering the avenue the car was operated in intermediate gear at a speed of not to exceed 8 or 10 miles an hour. The avenue was a dirt street, except the intersection of the two streets, which was paved. There were paved sidewalks on both streets. At the intersection was a bright arc light, rendering objects and an automobile at and about the intersection about as visible as in the daytime.
As the car crossed Fifth East street and entered the avenue, some boys and girls from 8 to 12 years of age were playing on the west sidewalk of Fifth East street and north of the avenue. Herman, as he approached and drove over the crossing, saw the children playing, but, as he testified, paid no particular attention to them, as he was looking ahead in the direction in which he was driving. The deceased and another boy about the same age were running a "hop-skip" race down the sidewalk on Fifth East street toward the avenue. On reaching the north sidewalk of the avenue, one of the girls of the party caught and "tagged" the deceased's companion. Another girl attempted to catch and tag the deceased, but he dodged away, ran westerly on the north sidewalk of the avenue, and then into the avenue immediately in front of the moving automobile. He was struck by the car, not on the crossing, but several feet west of it, west of the paved portion. Some of the witnesses *Page 11 testified that the boy ran immediately in front of the automobile as he left the sidewalk. Others testified that he ran partly across the avenue, and then suddenly turned and ran back immediately in front of the car.
There is a conflict in the evidence as to whether the front lights of the automobile were burning. Some of the witnesses testified that they were not, or, at least, that they saw no lights burning; others, that one light was burning brightly and the other dimly. There also was a conflict in the evidence as to whether the horn of the automobile was sounded as the car approached the crossing and entered the avenue. Some of the witnesses testified that it was sounded; others that it was not, or, at least, that they did not hear any sound of the horn. Witnesses about the crossing and in automobiles on Fifth East street testified that, because of the arc light, objects at and about the crossing were plainly visible, and that they saw the place where the car struck the boy, the part of the car that struck him, and the part, the front wheel, that went over his body, and plainly could see and saw all of the movements of the participants in the transaction. Evidence was also given to show that, as the car approached the crossing, no one was on the crossing or about to pass over it. Herman, in line with other witnesses, testified that the deceased left the sidewalk and suddenly ran in front of the car, under circumstances where he could not avoid striking him. The foregoing is a substance of the evidence bearing on the assignments.
In submitting the case the court charged the jury:
(7) "The plaintiff here seeks to hold Herman Wunderlich liable for the damages which he alleges he suffered, although said defendant did not drive said automobile, and was not present at the time of the driving thereof by his son, Herman Wunderlich, Jr. You are instructed in this connection that, if a minor child resides at the home and is under the control of his father, it is the duty of the latter to restrain such minor child from violating a statute; and if such father either expressly authorizes such child to violate a statute, or if, knowing that such child is violating a statute, he fails to restrain him therefrom, and so impliedly consents thereto, he will be deemed a participant in the *Page 12 act of such child, and held liable for the consequences thereof, if it is the proximate cause of injury to others."
(8) "You are instructed that, in order to hold the defendant Herman Wunderlich liable upon the theory stated in the preceding instruction, it must appear from the evidence and by a preponderance thereof that he expressly or impliedly consented to his son's act of driving the car on the occasion when said James Wilcox was injured. It is not sufficient that the defendant Herman Wunderlich furnished said automobile to his son, Herman Wunderlich, Jr., for use upon the public highways of Salt Lake City and this state, or that he knew that the said son intended it for such use and had so used the same; but, if you find that said defendant did not expressly authorize his son Herman Wunderlich, Jr., to drive said automobile on the occasion in question, the foregoing are facts from which you may infer such authority."
(9) "It is undisputed in this case that at the time of the accident in question the defendant Herman Wunderlich, Jr., was of the age of 15 years, and that in driving said automobile on said occasion he was violating an ordinance of Salt Lake City and a statute of this state providing that no person under 16 years of age shall operate a vehicle upon any highway of said city and state; and you are instructed that, if said Herman Wunderlich consented to the said act of driving said automobile by his son, Herman Wunderlich, Jr., and if Herman Wunderlich, Jr., was guilty of any negligence as alleged in this complaint at the time of the accident in question, which proximately contributed to the injuries of the said James Wilcox, then the said Herman Wunderlich would be liable for the same, and, in case your verdict is in favor of the plaintiff, you will return a verdict against both of said defendants."
These are assigned as error.
It is contended by Wunderlich, Jr., that the evidence was insufficient to justify a submission of the case to the jury, for the stated reasons that (1) the deceased, engrossed at play, and leaving the sidewalk, and suddenly running in front of the automobile, rendered him guilty of negligence, or the accident unavoidable; (2) that the place of the accident, because of the arc light, was so well lighted and objects so readily visible that the presence of proper lights on the automobile would not have rendered it more visible, as the deceased left the sidewalk and ran into the street, and, because engrossed in play, a sounding of the horn of the *Page 13 automobile as it approached the crossing would not have changed his course, leaving the sidewalk and running into the street, and that hence the failure of lights or to sound the horn was not the proximate cause of the injury; and (3) as there was no evidence to show that the car was mismanaged, or mishandled, or improperly operated or not under proper control, the fact that Herman was under 16 years of age, also, was not the proximate cause of the injury.
The same contentions are made by Wunderlich, Sr. He, however, further contends that, though the evidence be considered sufficient to show negligence on the part of Herman in one or more of the particulars stated, yet, under the law applicable in such case, the evidence is insufficient to render Wunderlich responsible for such negligence, and that hence the case on his separate motion ought to have been withheld from the jury, and, further, though it be held that the court did not err in not withholding the case from the jury as to him, yet the court, in submitting it, committed prejudicial error by misdirecting the jury as to the law, and in stating to them erroneous principles on the subject of his liability.
On the former hearing we all were of the opinion, though the conclusion was reached from different viewpoints and on different grounds, that the nonsuit as to Moroni and Frank Heiner was properly granted. No petition for a rehearing was filed by any one as to that part of our opinion affirming the 1 judgment of the court below in such particular. Because thereof we may regard the judgment of nonsuit as to the Heiners at rest, especially since a judgment of nonsuit is not a bar on merits.
On the former hearing we all were also of the opinion that Wunderlich, Jr., being under 16 years of age, and because thereof forbidden by ordinance and by statute 2 to drive or operate an automobile on a public street or highway, was at the time of the accident unlawfully driving the car, and that such violation constituted negligence per se. We are all still of that opinion. *Page 14
We also were of the opinion that there was sufficient evidence in the record, though in conflict, to show that Wunderlich, Jr., at the time of the accident, drove and operated the car without sufficient or proper lights, and without sounding the horn of the automobile, or otherwise giving warning of 3 its approach, and that the evidence is sufficient to justify a finding that he was guilty of negligence in such particulars. We all are still of that opinion.
On the former hearing we were divided, and still are divided, as to whether the evidence is sufficient to justify a finding that the driving of the car by Herman, because under the prescribed age and in violation of law, or his 4 failure to sound the horn, or having the car equipped with proper and sufficient lights, was the proximate cause of the injury. Of course, it is clear that actionable negligence may not be predicated on a failure to have lights, or to sound the horn, or to drive a car in violation of an ordinance or statute, unless such unlawful or negligent acts, or some of them, constitute the proximate cause of the injury. That Herman was a capable and experienced driver in fact, and well understood the mechanism and handling of a car, and that the car at the time of the accident was operated in intermediate gear and at a slow speed, and was under proper control, and that the accident was not due to any inability in handling the car, or to any mismanagement of it, is on the record not disputed.
While such matters are not controlling in determining whether Herman was in law a competent or qualified driver, or whether he, because under age, was driving the car in violation of law (for a person driving a car under the prescribed age would be guilty of violating the law, and such unlawful act negligence per se, notwithstanding, he was capable and skillful in fact in handling and managing a car), yet such matters, in my judgment, have much to do with, and are of importance in, determining the question of whether such violation was or was not the proximate cause of the injury. Because of the undisputed facts, it seems to *Page 15 me that Herman being under the prescribed age in no sense constituted the proximate cause of the injury, any more than had one over 16 years of age, with similar experience and skill, been driving the car under the same circumstances.
In this connection, let it also be observed that the complaint proceeds on the theory that Herman was not only under the prescribed age, but that he was "inexperienced in the driving of an automobile, and did not understand how to operate and drive an automobile in a careful or prudent manner," which latter allegation was inserted by way of amendment to the complaint, after a demurrer had been interposed to it. No evidence was given to support the amendment. On the contrary, evidence was given to show without dispute that Herman, though under the prescribed age, was an experienced and capable driver.
Now, as to the other alleged acts of negligence. That the place where the accident occurred was so well lighted by an arc light that objects and a car at and about the crossing were about as visible as in the daytime is on the record also not disputed. I thus do not see wherein the presence of proper lights on the car would better have disclosed the presence of it, or otherwise would have influenced the movements of the deceased. If the car in plain-view, moving slowly and directly in front of him, was not seen or discovered by him, it is difficult to understand how proper or sufficient lights on the car would have aided such discovery, or influenced his conduct or movements, or avoided his suddenly running in front of it. I think that to a large extent also true as to the failure to sound the horn.
When the car approached and entered the crossing, there was no one passing the crossing, nor any indication that any one was about to do so. The deceased left the sidewalk and ran across the street, not at the crossing, but a short distance to the west of it, and after the car had passed the crossing.
Under all the circumstances, I thus am of the opinion that the case is within the rule stated in the following cases, *Page 16 where the alleged negligence was held not to be the proximate cause of the injury: Zoltoviski v. Gzella, 159 Mich. 620,124 N.W. 527, 26 L.R.A. (N.S.) 436, 134 Am. St. Rep. 752; Jones v.Wiese, 88 Wn. 356, 153 P. 330; Henderson v. DetroitCitizens' St. R. Co., 116 Mich. 368, 74 N.W. 525; Wren v.Suburban Motor Tr. Co. (Mo.App.) 241 S.W. 464; Turner v.Bennett, 161 Iowa 379, 142 N.W. 999; Surmeian v. Simons,42 R.I. 334, 107 A. 229; Ireson v. Cunningham, 90 N.J.L. 690,101 A. 49; Carlton v. Boudar, 118 Va. 521, 88 S.E. 178, 4 A.L.R. 1480; Pratt v. Utah L. P. Co., 38 Utah 500,113 P. 1032; Berry on Automobiles (5th Ed.) § 190.
The evidence showing that the car being jointly owned by the two minors, that they used it jointly, that the one drove it on some occasions and the other on other occasions, that on the night in question they were jointly using the car for the joint pleasure and purpose of both, that when the lights of the car were found to be defective both acquiesced and participated in the car being driven to a service station to remedy the defect, that there being evidence to show that at the time of the accident both were in the car and participating in the joint purpose of driving and operating the car to the service station, each with equal right and opportunity to direct and control the car for such purpose, I do not see any substantial difference as to the question of liability of the two minors, nor on the record, any substantial difference as to the question of liability of Wunderlich and Heiner, Sr. Thus, if the nonsuit was properly granted as to the Heiners, as I think it was, I think it also ought to have been granted as to the Wunderlichs.
Though it be assumed that the case was properly submitted to the jury as to Herman, nevertheless I think the evidence insufficient to justify a submission of it as to Wunderlich. There are several fundamental principles with which we all agree. One is that a parent is not liable for the 5, 6 negligence or tortious act of his minor child merely by reason of the relation existing between *Page 17 them, and that as a general rule such doctrine is applicable in actions for negligence against the parent to recover for an injury resulting from the operation of the parent's car by his minor child (Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. [N.S.] 87; Smith v. Jordan, 211 Mass. 269,97 N.E. 761; McFarlane v. Winters, 47 Utah 598, 155 P. 437, L.R.A. 1916D, 618, but that the minor may become a servant or agent of the parent, whereby the parent, on the theory of master and servant, or on the doctrine of respondeat superior, may become liable when the automobile is operated within the scope or in the course of the employment and in pursuit of the parent's business. We are all agreed that the liability of Wunderlich cannot rest on such doctrine, for the reason that there is no evidence to show that Herman in any sense was the agent or servant of his father, or that he used the car in the course of any employment or in pursuit of any business or purpose of Wunderlich. If, therefore, Wunderlich is to be held liable, his liability must rest upon another or different theory or doctrine.
It is urged that such liability rests on the fact that Wunderlich sold the car to the boys, knowing they were under the prescribed age, and that they intended to use and drive the car on public streets and highways, and knew they so used and drove it, and made no objection thereto, and did not do anything to prevent their doing so. It is contended such facts bring the case within the rule stated in Berry on Automobiles (5th Ed.) § 1197, that, if an owner of an automobile intrusts his car to a child of tender years, or to one known to be incompetent and incapable of properly driving it, and that the probable consequence is that the person to whom the car is intrusted will injure others in the operation of it, the owner will be held liable for the damage done, on the theory that his negligence in intrusting the car and that of the driver combined and together constituted the proximate cause of the injury.
On the same theory it is urged that, where the owner intrusts *Page 18 his car to a minor known to be under the prescribed age, where by ordinance or statute such a person is forbidden to drive a car on public streets or highways, the owner will be held liable, regardless of whether the minor was or was not a capable driver in fact, because of the conclusive presumption, created by the ordinance or statute, that such a person is an incompetent driver. The cases cited by the author proceed on the theory that, while an automobile is not of itself a dangerous instrumentality, such as firearms or explosives, yet it become a dangerous instrumentality in the hands of an incompetent or inexperienced driver; and if the owner of an automobile and having controlover it intrusts it to another, to be by him driven and operated on a public street, who because of inexperience, or of some mental or physical infirmity or disability, known to the owner, is not capable of safely driving or operating the car, the owner is required to anticipate, or ought to anticipate, that so intrusting the car for such purpose to such other that injury to others may likely result because of such inexperience, infirmity, or inability to properly operate the car.
I am in accord with such principles, when properly applied, and when the injury is the result of such incompetency or inability. But the car here was not intrusted under such circumstances by an owner. True, it was sold to the boys under 16 years of age by Wunderlich; but it was not unlawful for him or for any vendor to sell a car to a minor or to one under 16 years of age, though he knew the minor intended to drive or operate the car on public streets or highways. Our statute in such respect must not be confused with statutes of other jurisdictions. The ordinance and statute here merely declare it to be unlawful for any person under 16 years of age to drive or operate a vehicle, which, of course, includes an automobile, on a public street or highway. By some statutes, in some jurisdictions, it, in addition thereto, is declared that it also is unlawful for a dealer or any one to sell an automobile or a motorcycle to a *Page 19 minor under the prescribed age, and also that a parent, guardian or custodian is guilty of a misdemeanor, or civilly liable, who permits a minor under the prescribed age in his charge and control to drive or operate an automobile or motorcycle on a public street or highway. Some of the cases where vendors or parents or guardians were so held liable were influenced by such statutes.
The effect and scope of a statute of that kind may not be read into our statute. Under our statute it is just as lawful to sell a car to a person under the prescribed age as it is to sell it to one over the prescribed age, or to an adult, though known to be without experience in driving a car and wanting in knowledge and ability to properly run and operate it. The sale of the car by Wunderlich to the boys was not illegal or forbidden, any more so than had a dealer or another sold the car to the boys, knowing they were under the prescribed age. Section 3956, Comp. Laws Utah 1917. Selling an automobile to a minor is not like selling firearms, explosives, or poison to a minor, knowing that, becouse of inexperience or want of knowledge of the minor, injury is likely to result, either to himself or to others by his use of them. Such things are in themselves considered dangerous. An automobile, by the courts generally, is not so classified or regarded. It is not so classified and regarded by this court.McFarlane v. Winters, supra.
When the car was sold and delivered to the boys they, though minors, had the absolute control and direction over it. They could sell, lease, or dispose of it with or without the consent of their parents. Except as the ordinance or statute forbade them, they had the legal right to use and drive the car as they saw fit. Their right so to do did not depend upon the consent of the parents, but upon the provisions of the ordinance and of the statute. Under our statute, because the boys, under the prescribed age, used and drove the car on public streets, in violation thereof, merely with the knowledge and without objection on the part of the parents, did not render the parents particeps *Page 20 criminis or guilty of a misdemeanor. To say that they in such case nevertheless became civilly liable is in effect to say parents are liable for the tortious and unlawful acts of their minor children.
We are all agreed that parents are not so liable, unless by participation they themselves become principals or parties to the commission of the acts. But, in the absence of a statute, mere acquiescence is not sufficient to characterize them participants or principals. I thus am of the opinion that the case does not fall within the rule stated by Berry, supra, where an ownerhaving control of a car, intrusts it to another, to be driven by him on a public street or highway and known to be incompetent or incapable of handling or driving it. Except in cases where statutes make a parent liable who merely permits or consents to his minor child under the prescribed age to drive an automobile on a public street, those generally cited by Berry in support of the rule are cases where the owner had control of the car and intrusted it to a minor under the prescribed age, or to another known to be incompetent or incapable of properly handling or managing it, and many of them are cases disposed of on demurrer to the complaint, where, as here, it was averred that the minor to whom the car was intrusted was not only under the prescribed age, but also that he in fact was inexperienced and wanting in knowledge and ability to properly handle and manage an automobile.
At first blush it may seem there is no substantial difference as to liability when a parent intrusts his own car to a minor under the prescribed age, and, when he permits or consents to the minor driving or operating his (the minor's) own car. But in law a legal distinction is quite apparent. In the one the parent has the absolute control of the car; in the other, he has not. In law a minor may buy, sell, use, operate, or control property, regardless of his parent's wish or consent, and whatever disability or restriction is placed on him in such particular is, in this jurisdiction, in no sense dependent upon the authority, wish, or consent of the parent. *Page 21
Though the case be regarded as analogous to the class of cases cited by Berry and to be governed by the same principles, yet I am of the opinion that the evidence is insufficient to justify a finding that the unlawful driving of the car by Herman, because he was under the prescribed age, was the proximate cause of the injury. That his doing so was negligence per se on his part may well be conceded. Yet in view of the undisputed evidence that the car in intermediate gear was operated slowly, and under proper control, and in no sense mismanaged or mishandled, I do not see any causal connection between the fact that Herman was under the perscribed age and the injury. That Herman was an inexperienced driver, or did not understand how to handle or drive a car, or that the car in any particular was mismanaged by him, rests entirely upon allegations, and not on proof. Nor is there any evidence to justify a finding or conclusion that the failure to sound the horn, or the omission to have lights, or proper lights, on the car, was attributable to inexperience, or want of knowledge in handling or operating or driving a car, or that such facts in any particular resulted from inexperience, or want of knowledge, or inability of Herman in handling or driving the car. In other words, the failure to sound the horn, and the omission to have lights, or proper lights, on the car, though negligence, was negligence wholly separate and apart from, and in no particular attributable to, or the result of, inexperience, or want of knowledge, or understanding, on the part of Herman to operate, handle, or manage a car.
Further, though it be assumed that Wunderlich was guilty of negligence in selling the car to the boys, knowing they were under the prescribed age, and that they intended to drive the car on public streets, yet, to be actionable, such negligence must have been the proximate cause of the injury. As was said inStone v. Railroad, 32 Utah 185, 89 P. 715, it may also here be said that:
"The defendant is not responsible for the results of negligence, except such as are natural, proximate, and direct. The general test as *Page 22 to whether negligence is a proximate cause of the accident is said to be whether it is such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced thereby. But the test of liability is not whether, by the exercise of ordinary prudence, the defendant could or could not have foreseen the precise form in which the injury actually resulted, but he must be held for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act. If the act is one which the party, in the exercise of ordinary care, could have anticipated as likely to result in injury, then he is liable for any injury actually resulting from it, although he could not have anticipated the particular injury which did occur."
In 22 R.C.L. 120, the proposition is stated that, to be the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or the wrongful act, and that it was such as might or ought to havebeen foreseen in the light of the attending circumstances, and that an injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable; that such an act is but the remote cause, or no cause, of the injury. In the absence of a statute, where a parent or an owner was held liable who had intrusted his car to a minor under a prescribed age, to be operated on a public street, it will be seen, in most of such cases, the minor was not only under the prescribed age, but also was inexperienced and not capable of properly handling a car. It is on that theory the complaint here proceeds. But, as has been seen, the evidence without dispute shows Herman was a capable and experienced driver and well understood the mechanism and handling of a car. In view of such undisputed proof, Wunderlich, by permitting, or not objecting to, Herman driving the car on public streets, had no more reason to anticipate injury to others, than by permitting, or not objecting to, another over 16 years of age, with the same or no more experience and ability to drive and operate a car than Herman possessed. Ordinarily the question of proximate cause is one of fact for a jury, but on the undisputed evidence the *Page 23 case here is, in my judgment, within the rule stated inAnderson v. Bransford, 39 Utah 256, 116 P. 1023, where the question was held to be one of law.
This brings us to the charge complained of. In paragraph 7 the court charged that, if a minor child resides at the home and is under the control of his father, it is the duty of the latter to restrain the minor from violating a statute; and if the father either expressly authorizes the minor to violate the statute, orknowing that the minor is violating it and fails torestrain him therefrom, he impliedly consents thereto, 7 and is deemed a participant in the act of such child and held liable for the consequences thereof. The charge is so worded that it is not only the duty of a parent to use reasonable care and make reasonable efforts to restrain the minor but that he is in duty bound to restrain him. The charge makes the duty of restraint imperative and unconditional. The court then charged that, if the parent, knowing that a minor is violating a statute, fails to restrain him, such failure impliedly is a consent of the parent and makes him a participant in the violation of thestatute, and liable for all consequences thereof. No authority under a statute such as ours, holding any such doctrine, has been submitted to us. A statement that a parent, knowing his minor child is violating a statute, does not restrain him, does not prevent him, is himself a participant and a principal in the unlawful act is, in effect, to make a parent liable for the tortious and unlawful acts of his minor child. I think the court confused our statute with those where a parent is made liable who suffers or permits a minor under the prescribed age to drive or operate an automobile on public streets or highways. But the charge goes even further than that, for it declares a parent liable, if he knows the minor is driving or operating a car on public streets and fails to restrain him, regardless of whether the parent did or did not permit it, or consent thereto, and regardless of whether he did or did not make reasonable efforts to restrain the minor. *Page 24
We are all agreed that the charge is erroneous. We disagree as to its prejudicial effect. I think it was not only erroneous, but prejudicial. When error is shown which in its nature is calculated or has the tendency to do harm, prejudice will be presumed, until by the record it is shown the 8 erroneous ruling did not do harm. By this charge the jury were given a wrong principle of law, and were misdirected as to the law. The jury was required to follow the law as so given by the court, and it must be presumed they did so. The court in effect having charged Wunderlich was in duty bound to restrain Herman from violating the statute, and the evidence showing without dispute that he knew Herman was driving the car on public streets and failed to restrain him, the jury, under the charge, were bound to hold Wunderlich liable for all consequences resulting therefrom, regardless of any and all questions of care or negligence on his part.
Since there was no dispute in the evidence that Herman was under the prescribed age, and thus by ordinance and the statute forbidden to drive a car on public streets and highways, that Wunderlich knew Herman was under the prescribed age, and failed to restrain him, the charge was tantamount to directing a verdict in favor of the plaintiff and against Wunderlich. In other words, the question is reduced to the proposition that, if a parent knows his minor child is driving a car on a public street or highway, and does not restrain him — if he fails to restrain him — the parent becomes a participant in the act, and liable for all consequences thereof, regardless of any and all questions of care on his part. That such a charge, under the authorities, is not only erroneous, but also highly prejudicial, seems clear, because the jury as to Wunderlich were misdirected as to the law respecting the very basis of his liability.
Though the court in other portions of the charge had correctly stated the law on the subject, the erroneous charge nevertheless would be prejudicial, for it cannot be ascertained whether the jury, in rendering the verdict against *Page 25 Wunderlich, followed the one, or the other. Much less may it be asserted that the erroneous charge was harmless, for the reason that there was sufficient evidence to justify a verdict against Wunderlich. That but involves the proposition that a charge misdirecting the jury as to the law with respect to a material issue or legal principle is harmless, if there be sufficient evidence to justify a verdict against the party complaining. Such a claim rests upon the groundless assumption that the jury, in rendering the verdict, disregarded the erroneous charge, or were not influenced thereby, and rendered the verdict upon their own notion as to the law.
Paragraphs 8 and 9 of the charge seemingly proceed on a different theory than that of paragraph 7. The controlling thought of paragraph 7 is that a parent must restrain his minor child from violating a statute, and if he knows the child is violating it, and the parent does not restrain him, the parent is a participant and liable. In paragraph 8 the controlling thought of liability is put on the ground of consent and authority, whether Wunderlich consented to or authorized Herman to drive the car "on the occasion of the accident." In paragraph 9 the liability is put on the sole ground of consent, whether Wunderlich consented to Herman driving the car on a public street or highway, and, if so, then Wunderlich was liable, if Herman was guilty of any of the acts of negligence alleged in the complaint which "proximately contributed to the injuries."
Here again the court confused our statute with statutes of other jurisdictions, where a dealer, vendor, parent, or guardian is rendered liable if he sells a car to a minor under the prescribed age, or permits or consents to his driving a car on a public street. Under our statute, a parent who merely permits or consents or yields to a minor under the prescribed age to drive his own car for his own use and pleasure does not, because alone of that, become a participant in the act, in the sense that he, equally with the minor, becomes responsible for all the consequences thereof, and *Page 26 certainly not for an accident or injury not directly attributable thereto.
As heretofore stated, I readily enough yield to the proposition that, if an owner having control of the car intrusts it to a minor under the prescribed age, who by ordinance or statute is forbidden to drive a car, or to one who is known to be inexperienced or infirm, or otherwise under disability, and for such reason either not legally qualified or able to properly drive a car, and the parent or owner could or ought to anticipate that so intrusting the car to be driven on a public street likely would result in injury to others, and if in such case an injury results to another, due directly to such disability either in law or in fact, the owner may well be held liable, on the theory that his negligence in so intrusting the car, combining with that of the person to whom the car was intrusted, together constitute the proximate cause of the injury. If, however, the injury in no sense is attributabe to the disability or disqualification of the driver, but to some act or conduct on his part separate and apart therefrom, I do not see wherein the negligence of the one concurs or combines with that of the other. In such case, to say the accident would not have happened, had the parent not intrusted the car to the minor, is but to confuse remote cause with that of direct cause. As I view it, the case is not within the rule stated by Berry, and certain it is that the charge complained of is far beyond it.
Let us look further to paragrph 9. Thereunder Wunderlich is made liable if the negligence of Herman but "proximately contributed to the injuries." That, is to say, if Herman was negligent, and if the deceased was negligent — whose negligence also was submitted to the jury — and though the jury found the negligence of both "contributed" to the injury, still, under the charge, Wunderlich could be held liable. I think the charge also wrong and prejudicial in such respect.
Thus, for the reasons stated, I am of the opinion that the judgment of the court below as to both of the Wunderlichs *Page 27 should be reversed, and the cause as to them remanded for a new trial, and that the judgment of the court below should be affirmed as to the Heiners. However, since two other members of the court, for the reasons stated by them in separate opinions, are of the opinion that the judgment should be reversed, and the cause remanded for a new trial only as to Wunderlich, Sr., and two other members that the judgment as to both Wunderlichs should be affirmed, and all of the members of the court being of the opinion that the judgment should be affirmed as to the Heiners, the order of this court is that the judgment only as to Wunderlich, Sr., is reversed, and the cause as to him remanded for a new trial. As to all of the other defendants, the judgment of the court below is affirmed.
The plaintiff is given his costs as against Wunderlich, Jr. The defendants Heiner are given their costs as against the plaintiff. A majority of the court are of the opinion that Wunderlich, Sr., is not entitled to costs, and hence none are awarded him.