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Case:
BGH VersR 1966, 364 VI. Civil Senate
Date:
25 January 1966
Judges:
Professor B.S. Markesinis
Copyright:
Von Mehren and Gordley

[The first defendant was employed by the second defendant as a butcher boy and driver. While delivering a load of meat and sausage, the first defendant negligently collided with a vehicle parked by the kerb. The owner of the vehicle brought suit, and the second defendant, arguing that his employee had been adequately selected and supervised pursuant to § 831 BGB, prevailed in the lower courts. The plaintiff’s Revision was unsuccessful.]

Notwithstanding the opinion of the Revision, the conclusion of the appellate court that the second defendant adequately supervised his driver can be supported without proof being made of unexpected or covert inspections. The judge of the facts was aware that particular observation of a driver’s conduct is frequently necessary in order to satisfy the strict requirements governing supervision of one employed as a driver. He nevertheless held that the question whether such additional measures were taken no longer arises when the employer and his representative—here the second defendant’s brother—participate in the trips so frequently that their presence is no longer perceived as an inspection and the vehicle driver accordingly drives so as to show his customary behaviour. If no objection arises to his behaviour after this sort of observation, then no further information should be expected from following the driver occasionally in another vehicle, a procedure in which the possibilities for observation are limited. This point of view is in agreement with the decisions of this Senate which have repeatedly emphasized that, although supervision must be strict, it must still be conducted in accordance with what the individual case requires and that no simple catalogue of required measures can be given. Thus, in a very similar case, it was held to be sufficient that the driver had proved his ability by making trips for about two years without any accidents and that the owner or his representative had provided continual supervision by frequently accompanying the driver on these trips. Under such circumstances, it would be exaggerated to require particular inspections in addition, such as those conducted for the most part in large businesses and in any event in public enterprises. It has also been decided that a well-founded belief in the ability of the driver, based on careful selection and supervision, could possibly make exceptional and unexpected inspections unnecessary. The same must apply to the training, instructions, and supervision of speed which the Revision asserts is lacking here. If a need for such measures does not arise when the owner and his representative accompany the driver on trips that are no longer perceived as supervision, then the question whether such additional measures were taken cannot be decisive. The plaintiff has not cast doubt on the fact that the first defendant was actually supervised in the manner alleged without any objections arising to his conduct. Accordingly, there are no legal grounds for objecting to the conclusion of the appellate court that the second defendant has fulfilled his duty of oversight.

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