BGHZ 19, 114 VI. Civil Senate (VI ZR 193/54) = NJW 1956, 217 = VersR 1956, 36, 126
23 November 1955
Professor B.S. Markesinis
K. Lipstein

On 23 December 1948 the A. H. Limited Partnership held a Christmas party for its personnel in a restaurant. E, the partner personally responsible, instructed the defendant, a bookkeeper in the firm, to take home two drunken employees, Sch. and H, in the firm’s car. The car was struck by a train on a level-crossing and H was killed.

The appropriate professional association claimed from the plaintiff reimbursement of its payment under § 1542 of the Imperial Public Insurance Act (henceforth referred to as RVO) and the provisions of the Reichshaftpflichtgesetz. The plaintiff, the German Federal Railway, met the claim of the professional association. It demands of the defendant compensation for its disbursements on the ground that he had alone caused the accident by his gross negligence.

Its claim for compensation failed in all instances for these


I. The Court of Appeal rightly proceeded from the principle that the plaintiff can under § 17 of the Road Traffic Act (StVG) claim from the defendant compensation for the payments made to the professional association only if the defendant as driver of the car involved in the accident was bound by statute to make good the damage suffered by the dependants of the deceased. For that purpose it is material whether H lost his life in an industrial accident and whether the defendant’s liability is excluded by § 899 RVO in combination with § 898 RVO.

1. The appropriate professional association acknowledged that the fatal accident of H was an industrial accident requiring compensation. The court is bound by this decision under § 901 RVO.

If the defendant were to be regarded as an agent or representative of the entrepreneur, or as a superintendent of his business and work, he would be liable to H’s dependants under § 899 in combination with § 898 RVO only if it was established in criminal proceedings that he caused the accident intentionally. Since no such finding was made, and the defendant was only convicted of a criminal act committed negligently, it is necessary to examine first of all whether the defendants belong to one of the classes of persons who are assimilated to the entrepreneur in § 899 RVO.

The Landgericht and Oberlandesgericht regarded the defendant as a superintendent of the business and work. The Court of Appeal came to that conclusion on the basis of the following findings:

The defendant supervised the whole business in the absence of the managing partner. He had prepared and carried through the staff Christmas party on the entrepreneur’s instruction. That the managing partner, on leaving the party about four o’clock in the morning with his co-partners, entrusted to the defendant, and not to one of the professional drivers who were present, the task of taking the drunken employees home was not only because he seemed to be quite sober but because the whole conduct of the party had been placed in his hands. The managing partners, on leaving the party, had wished to hand over the responsibility for its smooth ending to the man who possessed the highest authority in their absence. By virtue of the order given him, the defendant had to perform independently and responsibly the task of getting the inebriates properly and safely home and, in accordance with the entrepreneur’s duty of care, to assure the safety of the employees who were his passengers.
Contrary to the view of the applicant for review, these findings justify the conclusion that the defendant enjoys the protection of § 899 RVO.

The applicant maintains that the Court of Appeal drew the character of superintendent too widely and therefore misunderstood it. That is not correct. In its judgment the Court of Appeal accurately started from the principles regarding the notion of character of a superintendent of business and work developed by the Reichsgericht in its decision RGZ 167, 685 and 170, 159. It did not fail to realize that the only person who can be regarded as a superintendent is a member of the work-force who has the duty to supervise others so engaged or at least one of the departments of the enterprise. As the Reichsgericht (RGZ 170, 159) correctly states, he must stand out from among the other employees by the fact that he must care for the co-operation of several employees or for the smooth interlocking of the establishment and the plant, and therefore for the harmonious interplay of personal and technical forces and must be responsible for these. It must be conceded to the appellant that this is of course not generally the case of a car driver who has no other duties. The performance of the necessary journeys and the care and upkeep of the car are not a supervisory activity contemplated by § 899 RVO. It is established, however, that the defendant was not appointed as chauffeur. As the Court of Appeal found, even when he undertook the fatal journey he did not act only as a chauffeur but was engaged in a task that exceeded the general duties of a driver. As the Court of Appeal found, he was given the responsibility for the smooth ending of the party after the managers had left, and therefore a position was entrusted to him that raised him above the other employees. The applicant is in error in maintaining that the order did not fulfil the conditions for rendering him responsible for the regular co-operation of several employees or the smooth interlocking of the establishment and the plant, for such a range of duties demanded a delegation of at least some duration. There is no need here to decide whether the position of a superintendent of business and work requires that the responsibility is to be delegated for a longer period, for in the present case there is a finding, overlooked by the applicant, that the defendant had the task not only for the time being, but generally of supervising the business in the managing partner’s absence. In this situation the Court of Appeal’s characterization of the defendant as a superintendent of business and work is free from objection. It can therefore be left undecided whether he was also an agent in the sense of § 899 RVO, because in driving several employees home on the order of the entrepreneur he discharged the latter’s duty of care. In any case, the finding of fact makes it free from doubt that, even on the journey which led to the accident, the defendant acted as a person assimilated to the entrepreneur as mentioned in § 899 RVO.

2. Moreover, the application of §§ 898, 899 RVO is not excluded by § 1 second sentence of the Act of 7 December 1943 (RGBl. I 674) on the extended admission of claims for damages arising out of service and industrial accidents. According to that provision, insured persons and their surviving dependants can make good their claims for compensation without limit against the persons mentioned in §§ 898, 899 RVO, if the accident occurred when they were participating in general traffic. On this point the Court of Appeal followed the case-law of the Supreme Court for the British Zone, according to which there is no participation in the general traffic if the injured person was a passenger in a private vehicle driven by the person who caused the injury and the injured party stood in causal and organic connection with the employment (BGHZ 1, 245 = NJW 1949, 263). It assumed that such was the case here.

The present Senate decided (BGHZ 8, 330, 336 ff.) that so-called works traffic (constant transport of workers in a works vehicle to the place of business) constitutes transport within the business and that the transported workers do not participate in general traffic. It left unanswered the question whether also in the case dealt with in the Supreme Court of the British Zone, in which the entrepreneur took an employee from the place of work in his own car, there was no participation in the general traffic. In the dispute between the present parties there is also no need to decide whether the principle established by the Supreme Court is invariably to be followed. In any event in the present case, in agreement with the Court of Appeal, no participation in the general traffic can be said to have taken place.

The Act of 7 December 1943 deals principally with accidents suffered by a worker on the way from or to the place of work and which count as industrial accidents according to § 543 RVO. If an entrepreneur or a person assimilated to him (§ 899 RVO) should run down an employee on the way to the place of work, §§ 898, 899 RVO would exclude claims of a private law nature against the entrepreneur and the persons mentioned in § 899 RVO, although in such cases only a slight connection exists between the accident and the worker’s activity in the business. The Act, according to its preamble, wishes to do away with the unfairness that was produced because in cases of this kind a person injured in the course of service or work is placed in a worse position than other participants in traffic. This unfair disadvantage was to be removed in all cases where the accident occurs in the course of participation in general traffic. As this Senate has already said (BGHZ 8, 330 [337]), in deciding whether there is such participation it must first be asked whether the insured person suffered the accident as an ordinary participant in traffic or as an employee. Whether the former or the latter is the case or predominates must be decided on the facts of the particular case. If an employee, like H in the present case, is driven home after a staff party in a works car on the entrepreneur’s order, that journey is occasioned by the operation of the enterprise and is so closely connected with the enterprise and with the injured party’s membership of the enterprise that the character of the passenger as a participant in the traffic recedes into the background. That applies especially if the journey, as here, served only to take the employees home and, as the Court of Appeal also found, was ordered out of a feeling of care for the drunken employees. That an insured person in a case of this kind does not participate in the general traffic, in the meaning of § 1 II of the Act on the extended admission of claims for damages arising from service and industrial accidents, conforms to the principles on which both the courts and writers proceed in similar cases. The prevailing opinion recognizes that taking an employee home as a passenger from the place of work in the works car is not a participation in the general traffic [references].

The Court of Appeal thus held correctly that the Act of 7 December 1943 on the extended application of claims for damages arising out of service and industrial accidents does not stand in the way of applying §§ 898, 899 RVO in the present case.

II. The applicant for review also asks for an examination as to whether the statutory exclusion of liability in § 898 RVO affects the claim for compensation at all. He refers to the judgment of 3 February 1954 (BGHZ 12, 213) in which this Senate decided that a contractual exclusion or reduction of liability, e.g. between driver and passenger, cannot adversely affect the claim for contribution by a second tortfeasor under § 17 StVG or § 426 BGB. The applicant wishes to apply to the present case the notion that the effectiveness of such an exclusion of liability would stultify the equitable contribution intended by the legislator, and maintains that since the entrepreneurs and those assimilated to them under § 899 RVO are liable to the professional association for his expenditure according to § 903 RVO, the limitation of liability under §§ 898, 899 RVO is only justified in relation to the person directly injured in order to avoid litigation within the enterprise. But the legislator, the applicant continues, cannot have intended by this provision to interfere with the rights of third persons and thus to curtail provisions whose purpose is to produce an equitable compromise. Since the professional association sought the reimbursement of its expenditure from the plaintiff only but did not make any claims against the defendant under§ 903 RVO, the plaintiff, who was responsible only on the ground of strict liability, was saddled with the damage, whereas the defendant, who was to blame, was not called upon to pay.

The applicant regards this as unfair and as an infringement of §§ 898, 899 RVO and 17 StVG.

These arguments of the applicant for review cannot be of help to it. It may, of course, at first sight appear unfair that the plaintiff, who has to answer for the damage only on the basis of strict liability, must perform in full, whereas the defendant, who was to blame, is relieved of responsibility. But this objection of the applicant does not take sufficiently into account the special conditions of accident insurance law, which consciously aims at protecting the entrepreneur, agent, and business superintendent against claims exceeding the liability under § 903 RVO [reference]. The provisions, indeed, of §§ 898, 899 RVO serve also, as must be conceded to the applicant, the purpose of avoiding, in the interest of industrial peace, disputes between workers and employers over the responsibility for business accidents (BGHZ 8, 330 [339]) . . . It is, however, essential here that the Act has in relation to industrial accidents excluded claims for compensation by injured parties against an entrepreneur because the latter has to bear the burden of accident insurance and because the insured are allowed claims for compensation when the entrepreneur and his agents are not to blame and even if the employer himself has caused the accident through his own negligence. Likewise § 899 RVO in principle relieves agents as well as business and work superintendents of liability towards the workers because under § 903 RVO they must reimburse the professional association the expenses incurred by the latter, if they caused the accident intentionally or by carelessly neglecting their official, professional, or industrial duties. Hence the exemption of the entrepreneur as well as his agents and superintendents from liability towards the injured constitutes a compensation for the latter in return for their statutory liability to the professional association (RGZ 170, 159 [160]; cf. also RGZ 153, 38, 41, 42 and BGHZ 8, 330 [338]). This compensation would only be incomplete if the entrepreneur, agents, and superintendent were exposed, along with the liability under § 903 RVO, to a further claim and had to pay damages to a second wrongdoer in whole or in part by way of compensation. That would contradict the purpose of the law of social insurance, for the protection afforded by it to the business entrepreneur and those assimilated to him according to § 899 RVO would in that way be nullified again. That cannot be the intention of the statute. It shows that as a rule the insured has no claim against the individual entrepreneur, agent, or superintendent and that such a claim lies only in the exceptional case, not in issue here, where the entrepreneur, agent, or superintendent causes the accident intentionally (cf. RGZ 153, 38 [43]). If, however, the injured party has no claim whatever against them, an essential condition is lacking for a claim to contribution by the second wrongdoer. Contribution is a consequence of the common duty of several wrongdoers to pay damages and hence presupposes as a matter of principle that several wrongdoers are liable as joint debtors for the damage (BGHZ 11, 170 [174] and 12, 213). Since in the case to be decided the liability of the defendant to the injured party’s surviving dependants is excluded, a joint debt is lacking and with it the foundation for a claim to contribution.

It is another question whether the plaintiff could have resisted the professional association’s claim to payment, on the ground that it would be contrary to good faith, in spite of the possibility of recourse against the defendant (§ 903 RVO) to claim the full payment from the plaintiff. That question, however, need not be decided here.

III. The applicant for review now maintains that the claim has none the less a basis in § 426 II BGB. Both parties are alleged to be liable to the professional association as joint debtors, the defendant under § 903 IV RVO and the plaintiff because the claim of the surviving dependants under § 1542 RVO had been assigned to the professional association. Since the plaintiff has satisfied the association, their claim has passed to the plaintiff under § 426 II BGB.

It must be conceded to the applicant that both parties were debtors of the association for the reasons adduced by it. But that could lead to a duty of contribution between them under § 426 BGB only if to that extent they had stood in a true joint debtor relationship towards the association (BGB RGRK 10 edn. § 426 n. 1 and § 421 n. 1c). That, however, is not the case. A true joint debtor relationship presupposes an internal connection of the two obligations in the sense of a legal community of purpose (BGHZ 13, 360 [365], Great Civil Senate with references to practice of the Reichsgericht). That is missing from the obligations on which the claims were based which the association had against parties to the present dispute. It has lodged against the plaintiff a claim of the dependants of the injured party which is based on the Reichshaftpflichtgesetz and falls within the sphere of private law; it had been assigned to the association by operation of law (§ 1542 RVO). On the other hand, the association had against the defendant in its own right a claim to compensation of a special kind based on a statutory provision forming part of public law (§ 903 RVO) against which a contributory fault of the injured party could not be pleaded (RGZ 96, 135; 144, 31 [35]). It is adapted to the structure of accident insurance in the Reich Insurance Ordinance and to the relationship of the association to enterprises belonging to it which must pay contributions and has the purpose of indemnifying the association for its expenditure arising from the accident. Admittedly the existence of a true joint debt is not absolutely excluded by the differing bases of the obligations and of their origins. Instead it is decisive that in the present case an internal connection is lacking between the two obligations in the sense of a legal community of purpose. Both claims stand only in loose economic connection with each other, for they both had for their object the reimbursement of payments which the association was bound to make on the occasion of the accident arising out of the enterprise. The plaintiff and the defendant thus owed identical performance to the same creditor (the professional association) to the extent that the economic purpose of the obligation is attained by a single performance to the creditor who can therefore claim only one payment. This happened, however, without the internal connection required for a true joint debt. Since there was no legal community between the debtors, which is required by § 426 BGB as a presupposition for a duty to contribute (cf. BGHZ 13, 360, 365), only a joint debt in an untechnical sense can be envisaged. §§ 421 ff. BGB, and in particular the regulation of contribution in § 426 BGB, do not cover a relationship of this kind. Hence there is also no room for an analogous application of that provision.

This emerges also from another point of view. The Reichs Insurance Act does not wish to force the professional association to make claims on its members to cover its expenditure if they only acted negligently. Accordingly § 905 RVO provides that the meeting of members of the professional association or, if the by-laws so permit, the directors can renounce their right to recourse. If the directors wish to claim reimbursement, § 906 RVO allows the person liable to appeal to the meeting. Accordingly, the question whether a claim should be made on a member of the association under § 903 RVO is referred to the exclusive decision of the association. If the plaintiff were to be granted a claim for contribution by an analogous application of § 426 BGB, that would indirectly involve an outsider bringing a claim against the tortfeasor indirectly, which the professional association did not wish to make. This would be an admissible attack on the insurer’s authority to decide.

This view of the Senate that the plaintiff cannot bring a claim for contribution under § 426 BGB conforms to the practice of the Reichsgericht. It took the same standpoint in its decision in Seuffarch, 65 no. 32; and in its judgment published in DR 1940, 1779 no. 10 dealing with a similar case without, however, going more deeply into the matter it came to the same result that no joint debt and therefore no duty to contribute existed [reference].

IV. Before the Court of Appeal the plaintiff, by referring to the fact that the defendant had endangered transport, also based its claim on § 823 II BGB. The Court of Appeal regarded this as a modification of the claim which was inadmissible owing to irrelevance (§ 264 ZPO). It can be left undecided whether the arguments of the Court of Appeal on this question merit approval, for even from that legal standpoint contrary to the view of the applicant, a claim by the plaintiff for the reimbursement of its expenditure is not well founded.

The plaintiff does not allege that as a result of the defendant’s conduct it suffered damage to its locomotive or any other direct damage to itself. It relies only on the damage which is suffered because it was called upon to pay under the Reichshaftpflichtgesetz. A claim for compensation of that damage cannot be derived from § 823 II BGB in combination with §§ 315, 316 StGB. It is true that those criminal law provisions are protective statutes, which also serve to protect the plaintiff. Moreover, the mere circumstances that the sum which the plaintiff claims involves indirect damage does not, contrary to the view of the respondent, lead to a rejection of the claim, since, according to a general principle of civil law, a person who has suffered direct damage can claim compensation not only in respect of any direct but also of any indirect damage which he suffered. It is however always a presupposition that the damage falls within the scope of the interests protected by the protective statute, i.e. that it arose from the invasion of a legal interest for the protection of which the legal rule was enacted [references]. In the case for decision the danger which the protective statute is intended to avert did not in fact arise. The provisions on endangering the operation of a railway (§§ 315, 316 StGB) protect the health and property of railway entrepreneurs and the other persons directly affected by railway traffic, but not their general economic interests [references]. The damage that the plaintiff suffered through the claim for compensation on the basis of the Reichshaftpflichtgesetz affects only its general economic interests and therefore a sphere of interests which is not protected here. Hence § 823 II BGB, in combination with §§ 315, 316 StGB, also fails to provide a legal basis for the claim made in the plaintiff’s action.

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