II. The second appeal by the first defendant must succeed.
1. The legal position would be favourable to the plaintiffs (the dependants of O, who was killed), if they could rely on the liability under § 831 BGB. The District Court gave judgment against the first defendant on the basis of this provision. The Court of Appeal did not consider this aspect. In the light of the facts as found it is indeed not possible to hold the first defendant liable on the strength of § 831 BGB (in conjunction with § 844 BGB). It is true that the Reichsgericht has held occasionally that an employed driver continues to act in the execution of the function entrusted to him, if contrary to his instructions he gives a lift to outsiders in the course of a journey ordered by his employer [references]. In the opinion of this Division it cannot be stated generally, at least, that in such cases the employer is liable for the damage, unless he has been able to exonerate himself. In the present case, the first defendant had ordered the second defendant to transport goods and has expressly forbidden him to carry persons other than those connected with the business in his lorry. Having regard to the circumstances of the journey it was not reasonable either for O to assume, without making further enquiries, that the first defendant would agree to it that O would be carried in his lorry over a considerable distance at night. O entrusted himself exclusively to the second defendant, who was an acquaintance of his. In these circumstances the employer of the driver, and owner of the lorry, cannot be held liable for the personal safety of O. If the functions of the driver have been restricted by his employer, these restrictions are also effective in relation to such a user. Consequently a direct connection between the activity entrusted to the driver and the damage cannot be said to exist, even if the journey itself was not undertaken outside the scope of the employment [reference]. Even if in the absence of exoneration (§ 831 I first sentence BGB) the first defendant would be liable to a person in the street who had been injured owing to the negligence of the second defendant, irrespective of the fact that the latter had deviated from the timetable fixed by the office [reference], it does not follow that the first defendant is similarly liable to an unwanted passenger. His position is different; in so far as he is concerned, the employee entrusted with the execution of tasks allotted to him [Verrichtungsgehilfe] has exceeded his function, a fact which is relevant in excluding liability, seeing that the passengers damage falls outside the operational risk attracting liability under § 831 BGB [reference]. Therefore claims by the dependants under §§ 831, 844 BGB are also excluded.
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