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Case:
BGH NJW 1971, 31 VI. Civil Senate (VI ZR 56/69) = VersR 1970, 1157
Date:
06 October 1970
Translated by:
K. Lipstein
Copyright:
Professor B.S. Markesinis

For the purposes of his business the defendant owns a lorry and a lorry-train consisting of a lorry with a trailer. In addition to a number of drivers employed by him, he is assisted by his brother. He instructed the latter on 16 June 1965 to fetch 10 tonnes of coal. The brother used the lorry-train and not the single lorry, which would have required two journeys. Since the trailer was parked on the market in K, he fetched it from there and drove the empty vehicle to the place where the coal was located. On the way he had to pass through a village where the road made a sharp bend to the left. Since the road was wet he braked. As a result the trailer skidded on to the left side of the road and collided with the plaintiff’s car. The plaintiff suffered severe injuries, and his car was badly damaged.

The defendant’s brother was fined for negligently causing bodily harm. In these proceedings an expert stated that the brakes of the trailer were too weak with the result that it tended to skid on a wet surface and to leave its side of the road. In these circumstances the defendant insurer refused to pay for the entire damage and has only accepted liability in favour of the plaintiff up to DM 150,000 in accordance with §§ 158 ff. of the Act concerning Contracts of Insurance.

The plaintiff sued the defendant’s brother and the defendant claiming damages amounting to DM 24,216 and asking for a declaration that both brothers are also liable to compensate him for any other damage arising or likely to arise in connection with the accident. The plaintiff also sued the defendant’s brother for damages for pain and suffering.

The District Court, dealing with part of the claim, allowed damages for pain and suffering as well as DM 14,363 in respect of general damages and reserved its decision as regards the remaining DM 9853. In addition it granted the declaration asked for by the plaintiff.

After the brother of the defendant had paid the sum of DM 14,363, the defendant lodged an appeal limited to the grant of the declaration that he was also liable to the plaintiff in respect of future damage. The Court of Appeal of Düsseldorf rejected the appeal. A second appeal was unsuccessful for the following

Reasons

B. . . .

II. Contrary to the contentions of the appellant, the Court of Appeal applied § 831 BGB correctly.

1. It is undisputed that the defendant, in asking his brother to fetch the coal with the motor vehicle, appointed him to execute a function. The appellant questions, however, whether the brother of the defendant acted illegally in the meaning of § 831 BGB [reference] and argues that the brother had been engaged in a ‘frolic of his own’ [Schwarzfahrt] for which the defendant was not liable. In both respects the Court of Appeal was right.

(a) The brother of the defendant has injured the plaintiff illegally. Even if the test employed here is not that of an ‘effect tort’, i.e. whether the plaintiff was injured, the defendant must prove at least that his brother observed ‘proper traffic practices’ when he passed the sharp bend with his lorry-train. This is not, however, the case, even if he had not hit the plaintiff’s motor car. If a motor vehicle skids and bars the road, it cannot be said that the driver—whose personal culpability is not immediately relevant in applying § 831 BGB—drove in accordance with ‘proper driving practices’. Even if the defendant’s brother had examined the brakes of the trailer before starting and had found them in good order, it has not been shown and proved that his manner of driving at the time of the accident complied with the legal regulation of traffic to such a degree that it could not be condemned as illegal. This would only be the case if the brother of the defendant had acted in a manner which complied entirely with the demands and prohibitions of the traffic regulations [reference]. In the present case the question remains open, to the detriment of the defendant, whether his brother entered the sharp bend at an excessive speed in contravention of § 9 of the Road Traffic Act with the result that despite the dangerous wet road he had to apply the brakes of the lorry-train—with the behaviour of which he was not familiar in any case, as the defendant alleges. The Court of Appeal is therefore justified in stating that the insufficient operation of the trailer’s brakes had been a ‘contributory cause’ of the accident.

(b) It is true that the reversal of the burden of proof laid down by § 831 BGB only affects the principal if the person entrusted with the execution of a function has caused the damage in the course of executing the function, and not merely on its occasion. A direct intrinsic connection must exist as to manner and purpose between the function entrusted to him, on the one hand, and the injurious act on the other hand [references]. Contrary to the objections raised by the appellant, the Court of Appeal has correctly found that such a connection exists.

It must be admitted that the keeper of a motor vehicle is not liable for a ‘frolic of his own’ by the driver against his will; the principle is that he is not liable either under § 7 of the Road Traffic Act or under § 831 BGB [references]. However, in the present case the brother of the defendant was not on a ‘frolic of his own’; he had undertaken the journey not against his brother’s will, but with his consent; both the time of the journey as well as the route chosen by him corresponded to the latter’s intention. It is true that the principal may not be liable in certain circumstances for the faults of his assistant if the damage would not have occurred had the driver followed a certain prohibition imposed by his principal. This Division has so held in a case in which the driver, in disregard of a prohibition, had given a ride to an acquaintance who was injured in an accident [references]. The appellant is mistaken in contending that the present case is similar. In the former case, the injured party had accepted a lift by a driver on a journey on which only goods were to be transported; in the present case the third party was injured not in the course of making use of the vehicle, but as a road-user. It must be assumed in favour of the defendant that his brother fetched the trailer which caused the accident in disregard of the express prohibition by the defendant and connected it. According to a constant practice, however, acts of a person entrusted with the execution of certain functions do not fall outside the range of these functions even if he contravened the principal’s orders intentionally and on his own [references]. In the present case, when the brother of the defendant hitched on the trailer contrary to his orders, he did so in order to avoid having to make two journeys, and thus in order to carry out the task more quickly. Therefore this, and in particular the journey, in the course of which the accident occurred, stood in a relation not only of adequate causality but also, which is decisive, of intrinsic connection with his order to fetch 10 tonnes of coal. The fact is irrelevant that the defendant, as he alleges, forbade his brother to take the trailer because he did not wish to entrust him with driving the lorry with a trailer on the grounds of his advanced age.

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