Facts
Alphonse Marmy, a livestock merchant in Payerne, is insured with the insurance company "Zurich" as the owner of a motor vehicle. On January 20, 1957, his employee Pierre Risse borrowed the vehicle to visit his parents. On the return journey, Pierre Risse suddenly braked on a snowy road, the car skidded and hit a fountain, resulting in the death of Maurice Risse, Pierre's brother.
The parents and children of Maurice Risse brought a direct action against the insurer "Zurich" based on Art. 49 MVA, claiming 17,655 fr. 40. The insurer was ordered to pay 2,961 fr. 60 to Alphonse Risse and 3,988 fr. 80 to his wife.
In the same proceedings, the insurer attempted to exercise a recourse action against Pierre Risse, but was dismissed. The insurer then appealed to the Federal Tribunal, challenging the decision of the cantonal court.
Considerations
The Federal Tribunal dismisses the insurer's appeal. It considers that Pierre Risse committed only a minor fault in braking abruptly on a snowy road, without deliberately disregarding the rules of the road.
According to the Federal Tribunal, the direct action exercised by the injured parties based on Art. 49 MVA aims to allow the effective compensation of the damage caused. The insurer can only be subrogated to the claims of the owner against the driver, and not to those of the injured party.
The Federal Tribunal considers that…