R and G v H Hochbahn AG (Application of German Law in Austria)

CourtObsolete Court (Germany)
Docket NumberCase No. 24
Germany, Supreme Court of the Reich (in Civil Matters).
Case No. 24
R. and G.
H. Hochbahn A.G. and Fr. (Application of German Law in Austria Case).

State Succession — Continuation of Laws — Annexation — The Law of the Successor State — Tort Committed by Employee of German Reich In Austria prior to Introduction of German Law Relating to Officials — Whether German Public Law or Austrian Private Law Applicable.

The Facts.—On March 11, 1938, the police authorities in H[amburg] requested the first defendants, the H[amburger] Hochbahn A.G., a public utility company engaged in passenger transport, to supply thirty buses and sixty drivers for what purported to be a “transport exercise”. The first defendants were not informed of the true purpose of the “exercise” nor of the place of destination of the buses. In fact, the buses were required for the purpose of assisting the German army, which was about to invade Austria, in the task of occupying that country. While so engaged on Austrian territory, one of the buses belonging to the first defendants and driven by one of their employees (the second defendant) was involved in an accident in which the plaintiffs were injured.

It appears that in the course of an action brought by the plaintiffs against the first and second defendants, the defendants contended that, according to German law, the action should have been brought against the German Reich. In support of their contention they referred to Art. 131 of the Weimar Constitution of 1919, and s. 839 (1) (2) of the German Civil Code.

Art. 131 of the Weimar Constitution provided:

“If an official, in the exercise of public functions entrusted to him, commits a breach of official duties in respect of a third party, the responsibility lies, in principle, with the State or with the public corporation which employs the official. …”

S. 839 (1) of the German Civil Code provided:

  • “(i) If an official wilfully or negligently commits a breach of official duties in respect of a third party, he is liable to compensate the third party for any damage arising therefrom.

  • (ii) But if the official is charged solely with having acted negligently, he is only liable if the injured party cannot obtain damages elsewhere.”

The plaintiffs, assisted by the German Reich, denied that Art. 131 of the Weimar Constitution and s. 839 (1) of the German Civil Code applied in Austria. They contended, therefore, that it was unnecessary to sue the German Reich prior to bringing an action against...

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