Rushing v. Pickwick Stages System

California Court of Appeal Apr 7, 1931 No. Docket No. 7535.Published

Before: Nourse

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Holding. The court held that the action was one in tort rather than contract because the gravamen of the complaint was the defendant's negligence, and therefore the defendant was entitled to a change of venue to the county where it resided or where the injury occurred.

Issues

Whether the action was one in tort or contract for the purpose of determining proper venue.
Whether the defendant was entitled to a change of venue to the county of its residence or the place of injury.

Disposition. reversed

Quotations verified verbatim against the opinion

“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 the grievance rather than by the form of the pleadings.”

“It must be evident from the language quoted that the injuries resulting from defendant’s alleged negligence are the gravamen of the action pleaded and the action is, therefore, one in tort”

NOURSE, P. J.

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

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 the grievance rather than by the form of the pleadings.

(Ft. Smith & W. R. Co.

Ford,

34 Okl. 575 [41 L. R. A. (N. S.) 745, 126 Pac. 745, 746]; 1 Cor. Jur., p. 1015.) “If the complaint states a cause of action in tort and it appears that this is the gravamen of the complaint, the nature of the action is not changed by allegations in regard to the existence or breach of a contract.” (1 Cor. Jur., p. 1016.) We had occasion to consider this same question in

Nathan

Locke,

(Cal. App.) 287 Pac. 550, 551, where we said: “Illustrations of the latter class of actions are those for damages arising out of the contract relations between bailor and bailee, carrier and passenger, master and servant, innkeeper and guest, etc. In such cases the tort which is the basis of the claim for damages lies in the breach of the duty imposed by law and the allegations of the contract relations between the parties are merely for the pur

Rushing v. Pickwick Stages System

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NOURSE, P. J.

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