Rushing

Plaintiff sued in the Superior Court for the city and county of San Francisco for personal injuries. Defendant moved for a change of venue to Los Angeles County. The motion was denied and the defendant has appealed upon typewritten transcripts.

If the action is in tort the judgment must be reversed because section 395 of the Code of Civil Procedure provides that such actions must be tried in the county where the defendant resides or where the injury occurred. The uncontradicted showing is that defendant is a corporation having its principal place of business in Los Angeles County and that the injury occurred in Santa Barbara County. Hence, in an action in tort to recover damages for the injury, San Francisco was not the proper county for the venue of the action and defendant was entitled to a transfer in the absence of a counter-showing. (Mansfield v. Pickwide Stages, 191 Cal. 129, 132 [ 215 Pac. 389 ].) The only counter-showing which the plaintiffs endeavored to make was that the action was in contract—upon the breach of a contract of safe carriage.

In determining whether-an action is on the contract or in tort the character of the action is to be determined by the nature of…