Can I be indebted to the military?

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93 I 586

75. Judgment of June 9, 1967 within the meaning of Kn sli against Switzerland. Confederation.

Road accidents involving cyclists in the military.
1. The federal government's liability is based on Art. 27 MO, not the SVG or OR (recital 1).
2. Supplier damage in the event of loss:
a) of the husband (adult 2);
b) the father who helps the son with agricultural work (adult 3).
3. Amount of indemnity in the event of the loss of the husband or father:
a) Exclusion according to the applicable Art. 27 MO (recital 4);
b) Requirements for any liability under the Liability Act. Fault of a military person (rec. 5);
c) Requirements for liability according to the revised Art. 27 Paragraph 1 MO (AS 1968 p. 74). Appreciation of the special circumstances (rec. 6).

A.- On the night of March 24th to 25th, 1966, the Inf. RS 6 organized a mobilization exercise. As part of this exercise, recruit Hans Ruf had to deliver a message on an unlit bicycle. He drove on the 3rd class road M nchaltorf-Uster. At about midnight he collided with the 79-year-old pedestrian Emil Kn sli on the way and seriously injured him. Kn sli died in the early morning of March 25th. On the same day (March 25, 1966) the commandant of Inf. RS 6 ordered a preliminary hearing of evidence against Recruit Ruf. Since Ruf behaved correctly after the result of the investigation, the proceedings were discontinued (order of the commandant of Inf. RS 6 of May 13, 1966).
The widow Kn slis and his son Kurt reported to the federal government on May 17, 1966 a claim of CHF 25,000 for funeral expenses, as a supplement to the AHV widow's pension and as a replacement for the lost Father's labor force. On May 6, 1958, the accident victim had sold his agricultural home to his son Kurt. According to the purchase contract, this granted the parents a lifelong right of residence with the right to food and home care. Since then, the father has worked in the son's company.

B.- The directorate of the Federal Military Administration recognized the federal government's liability for the damage, but only for CHF 3,000.00 funeral costs. She transferred Kn sli CHF 3,000, which he accepted as a deposit.
In a letter from their lawyer dated July 26, 1966, the surviving dependents of Emil Kn sli made the following further claims: Fr. 8,000 .-- for the widow and CHF 5,000 .-- each for the son and (married) daughter.
On August 29, 1966, the management of the Federal Military Administration rejected these claims. She justified this statement by stating that the work done by the father Kn sli for the son was not based on an obligation to provide support, so that her failure did not constitute a supplier damage; a claim for satisfaction cannot be based on Art. 27 of the Swiss military organization. Confederation to be founded on April 12, 1907 (MO).

C.- The widow and the two children of Emil Kn sli apply with administrative action that the Swiss Confederation has paid them CHF 22,000, at most an amount at the discretion of the judge, plus interest at 5% since May 24th 1966, to be paid.
The victim's heirs claim that the investigation into Recruit Ruf was wrongly closed; a soldier who rides his bike at night without lights should be particularly careful. Reputation was lacking in this. The defendant is of the opinion that it is only liable under Art. 27 MO. In Article 101, Paragraph 2 of the resolution of the Federal Assembly on the administration of the Swiss Army of March 30, 1949, liability of the Confederation is reserved under special laws; In particular, reference is made to the Motor Vehicle Act (MFG), which has now been replaced by the Road Traffic Act (SVG); this therefore takes precedence over the military organization. According to Art. 70 SVG, cyclists are liable under the Code of Obligations (OR); Therefore, in the present case, the OR is applicable and the damage is to be calculated according to the general principles of liability law. Thereafter, it includes death costs, utility damage and immaterial damage, i.e. satisfaction. Only the latter two are still in dispute here, since the death costs are recognized and have already been paid.
According to Art. 45 Para. 3 OR, if a person is killed, compensation is to be paid for the supplier damage. Article 28 (recte 27) Paragraph 2 MO restricts this right to relatives who are entitled to support. These include the wife and son of the killed Kn sli. Someone is already in need of support when the previous, befitting way of life is impaired; that applies here. The widow would still receive a monthly pension of CHF 192 from the AHV, compared to the previous married couple pension of CHF 307 per month. It is a fact that two people can live together cheaper than one person alone. Therefore, the reduction in the AHV pension means that the widow will have to restrict herself more and her way of life will be impaired. Under this title, they ask for Fr. 4,022.70.
The son lacks the father's previous cooperation; In particular, he would no longer be able to cultivate the fields immediately, which is why the income would decrease. The defendant's view that this is indirect damage is incorrect. On the other hand, it is correct that the father's assistance was taken into account when determining the remuneration for the right of residence with the right to board and maintenance (CHF 5,000 according to the purchase contract of May 6, 1958). Precisely for this reason the son suffered damage (of CHF 5,904 .--) as a result of the lack of assistance, which he had to compensate for as a supplier damage.
Since the SVG as a special law takes precedence over Art. 27 MO and, according to Art. 70 SVG, cyclists are liable according to OR, Art. 47 OR applies, which provides for satisfaction if a person is killed. According to this, it is not necessary for the perpetrator to be at fault. The widow, son and daughter are deeply affected by Kn sli's sudden death. The daughter, who was married in D bendorf, often visited the father. Nevertheless, their entitlement to satisfaction will be reduced from CHF 5,000 to CHF 3,000. The satisfaction should therefore be set at a total of CHF 16,000.
Utility damage and indemnity claims thus totaled CHF 25,926.70 (CHF 4,022.70 + CHF 5,904 + CHF 16,000). However, only CHF 22,000 plus interest would be sued because at the time a total of CHF 25,000 (including the funeral costs) was demanded and CHF 3,000 had been paid for it.

D.- On behalf of the Swiss Confederation, the Federal Military Department requests that the complaint be dismissed if it is to be upheld. A request will be made that this will not occur if the plaintiffs base their claims on liability provisions other than Art. 27 MO.

The Federal Supreme Court is considering:

1. The present action is aimed at compensation for the damage, including satisfaction. The damage, as the plaintiffs understand, was caused by the killing of a civilian as a result of a military exercise. Therefore, Art. 27 MO together with the supplementary provisions of Art. 101-107 of the resolution of the Federal Assembly on the administration of the Swiss Army of March 30, 1949 (BVA; AS 1949 p. 1118) apply. According to Art. 105 Paragraph 1 BVA and Art. 110 Paragraph 1 lit. b OG, the action is to be judged by the Federal Court as the sole instance. The parties are in agreement on this.
However, the plaintiffs assert that since Art. 101 Para. 2 BVA reserves the liability of the federal government according to special laws and, according to Art. 70 SVG, cyclists are liable under the Code of Obligations, the OR should be applied in the present case. Insofar as they mean to say that this takes the place of Art. 27 MO and excludes its application, they cannot be followed. The reservation in Art. 101 Para. 2 BVA is limited to the liability of the federal government under special laws; Its purpose is to make the federal government liable for certain operational risks in favor of the injured party. This applies in particular to the MFG explicitly mentioned there, which has been replaced by the SVG. This declares in Art. 70 Paragraph 1 that cyclists are liable according to OR. The cyclists are therefore subject to general law and not to liability under special laws; Accidents caused by them are therefore not subject to the reservation of Art. 101 Para. 2 BVA. If the requirements of Art. 27 MO are met, this is to be applied. There is a good reason for this that the MO introduced the federal government's causal liability to protect those affected because of the dangers associated with military exercises; this far-reaching protection would fail if, if the damage was caused by cyclists, the law of obligations were applicable instead, which only provides for liability for negligence. Where, in addition to Art. 27 MO, the general liability of the OR does not come into question, it is not this but Art. 27 MO that applies (cf. in particular the statements by OFTINGER, Haftpflichtrecht, Vol . 865/66 on the relationship of Art. 27 ff. MO to the SVG).
The terms and rules of general liability law, as set out in Art. 42 ff. OR, are only to be used to supplement the order in Art. 27-29 MO, which is limited to a few principles. OFTINGER also says this and nothing else at the point called by the plaintiffs in Volume II / 2, p. 847. He by no means takes the view that the OR replaces Art. 27 ff. MO and excludes their application (cf. also his presentation of the relationship between Art. 27 et seq. MO to the Code of Obligations, p. 869 et seq. and that between the Special Act and OR, Vol. I, p. 428 et seq.). In particular, according to the express provision of Art. 102 BVA, Art. 42, 43 Paragraph 1 and 44 Paragraph 1 OR apply mutatis mutandis when determining the compensation. In addition, although they are not mentioned there, Articles 45 and 46 must also be used, which describe the damage to be compensated in the event of killing a person or bodily harm. Of these, only the funeral costs and the utility damage come into question. The funeral expenses have been paid and are no longer in dispute. The defendant also recognizes in principle its duty to compensate a supplier loss; but it denies that the plaintiffs suffered such. This is to be checked below - separately for the widow and son Kurt Kn sli, who are claiming utility damage for various reasons. The defendant then denies that in the cases of Art. 27 MO a claim to satisfaction could arise.

2. A pension damage to the widow was first asserted in the letter of May 17, 1966. In it, she and the son registered a total claim of CHF 25,000 under three titles without elimination. After the management of the Federal Military Administration rejected this claim on July 6, 1966, the plaintiffs did not accept it again in their letter of July 26, 1966, and the latter did not deal with it in their statement of August 29, 1966 more with it. In the lawsuit, the widow is now demanding CHF 4,022.70 as compensation for the damage she sustained because her widow's pension was reduced compared to the previous married couple's pension.
One can ask oneself whether, under these circumstances, the prerequisites for an action brought before the federal court against the federal government under public law are met. The defendant does not raise any objection in this regard; she seems to regard her answer of July 6, 1966 as a statement within the meaning of Art. 114 OG. Since the defendant is dealing materially with the lawsuit, this statement is sufficient.
Art. 27 para. 2 MO restricts the entitlement to supplier damage to the "dependents entitled to support", thus making it dependent on a duty of support under family law. This prerequisite is fulfilled with widow Kn sli, since the killed as a husband had to provide for her maintenance according to Art. 160 Abs. 2 ZGB. However, damage only occurs if the person killed has actually supported the claimant and would have supported him in his continued life, ie if the death of the provider has an adverse effect on the previous class-appropriate way of life of the Claimant (BGE 82 II 39 and earlier judgments listed there). This is not the case with Ms. Kn sli. Her livelihood is mainly secured by the right of residence with the right to food and domestic care, which she is entitled to in relation to her son; he has so far fulfilled this obligation. For her additional needs, the widow has an AHV pension of CHF 192 per month, while the two spouses together received a pension of CHF 307 beforehand. The objection that the maintenance of a married couple is cheaper than that of an individual does not get through; because that applies above all to food and accommodation - Ms. Kn sli receives this free of charge from her son - but not to other needs. It is therefore not to be assumed that before the death of the accident victim, more than half of the married couple's pension was used for the woman. Since she now has more than that half, she is not financially affected by the death of her husband, so she does not suffer any loss of care. Your claim made under this title is unfounded.

3. Even the son belongs to the group of persons entitled to support, since the obligation of blood relatives to support in ascending and descending line according to Art. 328 ZGB is reciprocal and not dependent on age. But it seems extremely unlikely that this 35-year-old and healthy owner of a cheaply taken over agricultural home would ever have needed the support of his elderly father, i.e. suffered a supplier damage through his death Has.
The son Kn sli asserts, however, that the decisive factor is the actual loss, and through the death of his father he misses the cooperation of his father, who is still armed despite the 79 years of age, which he would otherwise probably be in the context of Table I by Stauffer Sch tzle would have provided further. These