On 20 July 1913, there was a collision between a tram belonging to the plaintiff and a taxi belonging to the first defendant and driven by the second defendant. The passengers in the taxi, Sch., an accountant, and his wife and daughter, were injured. They claimed damages from the plaintiff tram company under the Imperial Law of Liability. The plaintiff now alleges that the accident was entirely due to the fault of the second defendant, for which the first defendant is responsible, and seeks a declaration that the defendants are bound to indemnify it for all loss arising from the accident.

The lower courts granted the claim and the defendant's appeal is dismissed.

Reasons

1. The court below did not misapply para. 278 BGB, as the appellant contends. Doubts may certainly be entertained about the reasoning of the Court of Appeal that in a case like the present the taxi driver may regard all of his passengers as contractors, and may look to each of them for the fare. We need not decide this, however, since in any case there is no doubt that a contract was made with the accountant Sch., who boarded the taxi at the same time as his wife and daughter. But that does not mean that he is the only person with a contractual claim arising out of the contract of carriage. On the contrary, the contract of carriage is a contract in favour of the wife and daughter who were travelling with him; they were 'third parties' under para. 328 BGB, and acquired a direct right to demand performance, namely proper and safe carriage. There is therefore no reason to doubt the Court of Appeal's conclusion that the first defendant was liable under the contract of carriage to all three passengers, and the he must answer for the fault of the second defendant, who in this respect was his agent for performance under para. 278 BGB.