Cour de cassation

The court:

In view of article 1384 (1) and (3) Code civil;

Given that the responsibility for the acts of an employee (préposé) which article 1384(3) Code civil imposes on the master or superior (commettant) rests on the fact that the latter has the right to give the subordinate orders or instructions regarding the method of performing the tasks for which he is employed, that it is this right which creates the authority and the subordination without which there cannot properly be said to be a superior, and that if, for a fixed period of time or for a particular job, the superior puts one of his regular subordinates at the disposal of another person, his responsibility is not displaced or transferred to that other unless, at the moment of the accident, the inferior who caused it was subject, by contract or law, to that other's authority or orders;

Given that it follows from the judgment under attack that in the course of a journey with other members of a hunting party in a vehicle belonging to the firm of Zuber, Riéder & Co. and driven by their employee, Journy, Meyer met with a fatal accident due to the negligence of Journy; given that Meyer's widow sued Journy under articles 1382 and 1383 Code civil and claimed damages from Zuber, Riéder & Co., both as carrier under article 1147 Code civil and as civilly responsible for the act of its employee; Given that in its judgment of 25 February 1931 the Court of Appeal of Besançon, upholding a judgment of 21 February 1930, found Journy entirely to blame for the accident and held him liable in damages to Widow Meyer, but dismissed the claim against Zuber, Riéder & Co. on the ground first, that as the victim was travelling free of charge the defendant had not assumed the obligations of a contractual carrier, and secondly, that it was not answerable for the conduct of J. who was not acting as their employee at the time;

Given that the judgment is criticised solely for violating article 1384 (3) Code civil in denying the relationship of master and servant between Zuber, Riéder & Co. and its employee, founding on the fact that the director of the company had simply put his vehicle and driver at the disposal of the hunting party without being personally involved in the trip, and also on the fact that Journy’s food for the day was being provided by the hunting party;

But given that it by no means follows from the gratuitous nature of the trip that Journy, the employee of Zuber, Riéder & Co., was thereby subjected to the authority and orders of the hunting party or of its members so far as driving the vehicle was concerned, and given that the master does not cease to exercise control over his chauffeur by reason simply of not being in the vehicle and that it is immaterial who provided Journy with his meals; Given that while the judgment states that the director of the company was in no position to give Journy any orders or directions this statement is contradicted by the fact that he gave Journy the order to make the journey in question, and that there is nothing in the judgment below to suggest that Journy had ceased to be under the juridical control of the company during the trip; from which it follows that the decision of the Court of Appeal violates the text cited;

For these reasons QUASHES the judgment in so far as it dismissed the claim against Zuber, Riéder & Co.

Cass. Civ., 4 May 1937

Doctrine changed: see Crim., 30 June 1987, Bull no. 278: “The relationship of subordination, from which is derived the liability incumbent upon a principal pursuant to Article 1384, paragraph 5, of the Civil Code, supposes that the latter has the power to exercise authority by giving those to whom tasks are given orders or instructions on the way such task should be carried out, even if it is for a short time and without any financial compensation. A judgement delineates sufficiently the existence of a relationship of subordination if it finds that a person acting as an occasional helper of the Manager of a hotel/restaurant, even though he is not earning anything, has contributed in a frequent and regular manner to the running of the establishment and has behaved as a “representative of the management” in his relations with clients of that establishment”.

See Jurisclasseur “civil liability”, fasc. 143 “liability of principals” (Didier Rebut, 1998): “Liability for the actions of a worker, imposed upon the master or the principal by Article 1384, paragraph 5, supposes that the latter has the right to give the worker orders or instructions on the way he should carry out the tasks he has been employed to do; that right is the basis of authority and subordination, without which there is no real principal”. The relationship of subordination supposes that the principal has the right to give orders and instructions, such a right constituting the criterion for that relationship, as is clear from a large number of Court of Cassation judgements (see for instance Crim., 7 November 1968, Bull. No. 261, 30 June 1987: bull. No. 278 and 14 June 1990: Bull. No. 245). It is not necessary that a legal relationship binding the principal and the worker be the basis of the authority of the former over the latter. The relationship of subordination derives more from the material possibility to give orders. Indeed, the Court of Cassation has recognised that nuance by stating that “the relationship of subordination, from which is derived the liability imposed upon the principal by Article 1384, paragraph 5, of the Civil Code, supposes that the latter has the power to exercise authority by giving his workers orders or instructions on the way the given task should be carried out, even if it is for a short time and without any financial compensation” (Crim., 14 June 1990 op. cit.). The power to give orders is a sufficient criteria for the relationship of subordination. Moreover, the fact that a relationship of subordination is not a continuous one in the framework of a contractual relationship such as an employment contract, is not important. The relationship of subordination can arise from a one-off task during which one person gives orders to a third party. The existence of a relationship of subordination is a question of fact, which is to be assessed on the basis of a concrete act, not of a legal situation. The relationship of subordination can arise in a context which is completely foreign to the existence of a relation of authority, if it appears that such a relationship has existed from time to time. Thus, if a principal makes a worker available to work for a third party, the person vicariously liable is the one who had the authority to give orders to the worker in the framework of his activities at the moment when the damage occurred (Crim., 14 March 1983: Bull. Crim. No. 78, Civ.2, 18 December 1996: Bull II, no. 306). The provision of a worker gives rise to a transfer of liability if the relationship of subordination is concomitantly transferred; such a determination falls to be made by the lower courts.

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