Facts
On October 23, 1985, the wife of M. caused a self-accident while executing an overtaking maneuver in Ottenbach, in which she was seriously injured and her six-month-old child was fatally injured. As the father of the deceased child, M. filed a lawsuit on November 10, 1987 with the Commercial Court of the Canton of Zurich against the liability insurer of the vehicle owner, the X. Insurance Company, for the payment of CHF 25,000 in satisfaction plus interest. The Commercial Court dismissed the claim on August 26, 1988.
Considerations
The Federal Supreme Court confirmed the rejection of the claim for satisfaction. Pursuant to Art. 47 CO, the judge may, in consideration of the special circumstances, i.e. according to law and equity, award the relatives of a deceased person an appropriate sum of money as satisfaction. In the present case, however, the special circumstances required by Art. 47 CO were lacking, as the plaintiff and his wife were severely affected by the death of their common child, but the plaintiff, out of loyalty to his wife, had not even considered a claim for satisfaction against her.
The Federal Supreme Court saw in this a marital solidarity in the common suffering, which stood in the way of a claim for satisfaction. The Federal Supreme Court further stated that close and lasting relationships such as…