Sayadoff v. Warda
| Decision Date | 01 June 1954 |
| Docket Number | No. 15832,15832 |
| Citation | 271 P.2d 140,125 Cal.App.2d 626 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SAYADOFF v. WARDA et al. |
Belli, Ashe & Pinney, San Francisco, for appellant.
Edmund J. Holl, San Francisco, William Lahanier, San Francisco, for respondents.
Plaintiff appeals from a judgment of nonsuit rendered after plaintiff's opening statement to a jury.
The action was based on a conspiracy by defendant paramour to commit assaults and battery upon plaintiff by committing abortions on her and rendering her sterile and causing permanent damage to her female organs and causing her extreme mental suffering.
Upon motion for nonsuit after opening statement it is unquestioned that 'all favorable inferences reasonably to be drawn therefrom, must be accepted by the court as facts which would have been proved if the case had been allowed to be tried.' Bias v. Reed, 169 Cal. 33, 38, 145 P. 516, 518; Moffitt v. Ford Motor Co., 117 Cal.App. 247, 3 P.2d 605.
The opening statement recites, substantially, the following facts: Appellant, at the time of the abortion, which is the basis for this action, was thirty-five or thirty-six years old, and was a resident of San Francisco. She had been in this country since she was six or eight years old, having come here from Syria. Respondent was a distant cousin, who came from the same Syrian town as did appellant, and was friendly with appellant and her husband while she was married, and became more friendly with her after her divorce in 1948. Mrs. Sayadoff was given custody of the three children of that marriage at the time of the divorce and thereafter supported herself in good health until the time of the abortion which was the basis of action here. Since this abortion she has been able to do little work and her health will remain bad for the rest of her life.
Respondent and appellant began a course of meretricious sexual relations after appellant's divorce, and respondent often told her that he was in love with her and wanted to marry her. These relations resulted in appellant becoming pregnant in about July of 1948. At the 'importuning' of respondent appellant went to Portland, Oregon, where she was aborted. At that time appellant knew nothing about the procedure or 'anything else.' The respondent made the phone call to the clinic where the abortion was performed, gave appellant $350, and she went to Portland from San Francisco, apparently alone, on the train, and had an abortion performed and was 'placed on the train' and returned to San Francisco. Upon her return she again resumed the meretricious relationship with respondent and again became pregnant. In December of 1948 appellant again, apparently alone, went to Portland on the train, after respondent had phoned the clinic, and again was aborted, 'placed on the train' and returned to San Francisco. This time respondent gave her $500 for the abortion.
In August of 1949, having again become pregnant, appellant again followed the same procedure. '* * * when Mrs. Sayadoff went up there, she knew nothing of this place, nothing of the doctor, nothing of the procedure or nothing of the establishment, but that it was all known by Mr. Warda and the arrangements were completely and entirely made by Mr. Warda and at his behest.'
After this last trip appellant was ill and it became necessary to remove her female organs.
In the language of counsel it is said: '* * * of course, it is not contended here that Mr. Warda himself performed the abortion; it is contended, and very much contended, that it was through the offices of Mr. Warda, the importuning of Mr. Warda, the selection by Mr. Warda of the abortionist, the payment for her to go to this abortionist, that the abortion was done.'
At the conclusion of this statement and upon the motion for nonsuit the trial judge said in part:
Some mention is made in the briefs filed herein that because the action was dismissed as to the abortionist and other named defendants, the action for conspiracy must fail. This is not the law. One conspirator may be sued as one of several tort-feasors and the failure to join the coconspirators is not fatal to the action, for as is said in Biggs v. Tourtas, 92 Cal.App.2d 316, at page 322, 206 P.2d 871, at page 876: "In an action for damages resulting from acts of conspirators, the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tort-feasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity." If an abortion is an actionable tort the opening statement is sufficient to show a conspiracy.
Appellant contends that here there was no consent on her part to the claimed tort, that she was 'importuned' by respondent and that she passively submitted. Under the facts outlined in the opening statement it is difficult to see how she can seriously support this contention. Even resolving, as we must, every favorable inference which might reasonably be drawn from the opening statement in appellant's favor, still there would appear to be consent on her part to participation in the act. The relationship of the parties, their intimacies, their common foreign extraction, are not enough to show that appellant did not consent to the acts here in question. She was 35 or 36 years old, with sufficient intelligence to be self-supporting, had been married and had children, and had lived in this country for twenty-seven to twenty-eight years. The fact that she was 'importuned' by respondent shows nothing more than that he urged her to submit to this last abortion. She rode on the train alone and...
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