tentions urged by the appellant, we are of the opinion that the judgment should be affirmed; and it is so ordered.

acts in his office as attorney which were alleged to have involved moral turpitude and dishonesty within the scope of subdivision 5 of section 287 of the Code of Civil Procedure,

We concur: WASTE, P. J.; KINSELL, which provides that an attorney and counJudge pro tem.

(49 Cal. App. 468)

BAR ASSOCIATION OF SAN FRANCISCO v. CANTRELL. (Civ. 3437.)

(District Court of Appeal, First District, Division 2, California. Oct. 5, 1920. Rehear

ing Denied Nov. 4, 1920. Hearing Denied by Supreme Court Dec. 2, 1920.)

1. Attorney and client 102 Attorney for executor stands in trust relationship to beneficiary under will.

An attorney for the personal representatives of a decedent charged with the duty of administering the estate stands in the same trust relationship to the beneficiary as the personal representatives, and his misrepresentation that the law of the state required personal representatives to be represented by counsel is fraudulent.

2. Attorney and client 38-Good moral character is condition to continuance of practice of law.

selor may be removed or suspended "for the commission of any act involving moral turpitude, dishonesty or corruption, whether the same be committed in the course of his relations as an attorney or counselor at law, or otherwise, and whether the same constitute a felony or misdemeanor or not; and in the event that such act shall constitute in a criminal proceeding shall not be a cona felony or misdemeanor, conviction thereof dition precedent to disbarment or suspension from practice therefor."

The accusation was in four counts, to one of which a demurrer was sustained. The other three counts may be summarized as fol

lows:

First, that the respondent, who was the attorney for the executor and executrix of the will of Alice Wall, a deceased person, after the admission of the will of the decedent to probate, for the purpose of seeking additional Alice Foley, a beneficiary under the will, then employment and compensation, wrote to one residing in the state of Connecticut, informAs a good moral character is a conditioning her that he was acting as the attorney for precedent to admission to the bar, so it is a the executor and executrix, and further statrequisite condition to the rightful continuance ing, "As I deem it advisable for the quick in the practice of the profession. winding up of the estate to have the parties interested represented by as few attorneys as 3. Attorney and client 44(2) Attorney who misappropriates client's money guilty of possible, I write to inquire if you desire me to moral turpitude though he returns it. represent you in this proceeding"; that on receipt of this letter, Alice Foley, through her attorney in Connecticut, wrote the respondent for a copy of the will and for such papers as the respondent might suggest she should sign; that on February 27, 1914, the respondent replied as follows:

An attorney who made misrepresentations to secure fees and improperly applied a client's money to his own use in two different cases is guilty of moral turpitude, regardless of whether he intended to return the funds, and the fact that pending investigation he did so, for it is indispensable that an attorney be trustworthy.

"Under our law foreign heirs or beneficiaries 4. Attorney and client 58 Attorney im-under a will must have a local agent to repreproperly using client's funds should be sus- sent them. This appointment may be made eipended though he makes restitution. ther voluntarily or through an order of court."

Where an attorney not only made misrepresentations but improperly used his client's funds making restitution only during the pendency of an investigation of his conduct, he should at least be suspended from the practice of his profession for the period of one year.

It is further alleged that these statements were untrue. Both the statements and their untruth are conceded.

Second, that the statements set forth above were made, and that in March or April, 1914, the respondent in fact became the attorney of Alice Foley, and as such attorney and for her, on or about January 24, 1917, he received from the executor and executrix of the will in question the sum of $751.15, in payment of the legacy to her; that the respondent "willfully and fraudulently neglected and failed Nathan C. Coghlan, of San Francisco, for to pay said sum of money to said Alice Fo respondent.

In the matter of the application of the Bar Association of San Francisco for disbarment of Russell W. Cantrell, attorney and counselor at law. Respondent ordered disbarred. Perry Evans, of San Francisco, for petitioner Bar Association.

BRITTAIN, J. The Bar Association of San Francisco accused Russell W. Cantrell, an attorney and counselor at law, of certain

ley," and appropriated it to his own purposes against her will and consent; that the money so alleged to have been embezzled was not paid to Alice Foley until the month of March, 1918, and not until there had been an investi

(193 P.)

gation of the respondent's conduct by the [ ceal from any one the receipt by him of the said accuser's committee of discipline and griev-money belonging to his said client; that in the month of December, 1917, respondent paid to ances. The facts alleged are conceded. Third, that the respondent as the attorney the said client, through a local attorney, $100 on account of the amount collected by him." for the plaintiff in an action in the superior court in San Francisco, entitled Stefano De- In regard to the Demartini Case the remartini v. Lewis Packing Company, procured spondent seeks to justify his having failed to a mandatory injunction requiring the defend- obey the instructions of his client by an unant forthwith to remove an encroachment supported statement that he was following from the property of the plaintiff, which en- the wishes of his client's son. The only excroachment consisted of a portion of a build-planation of his having retained his client's ing, and the judgment awarded the plaintiff money for a period of many months is that in that action $400 damages and costs; that he thought his client would be angry if he the defendant appealed from the judgment; thought the settlement had been made in viothat thereafter, on or about August 20, 1918, lation of the instructions he had given the the attorney for the defendant in that action attorney. offered to the respondent, as the attorney for [1] Of the misrepresentations made by the Demartini, to satisfy the money part of the respondent to Alice Foley by which he was judgment and to dismiss the appeal, provided placed in a position which made possible his the defendant were granted until March 1, misappropriation of her money, no justifica1919, to remove the encroachment; that De- tion was attempted. He was the attorney of martini refused to approve this settlement the personal representatives charged with the and instructed the respondent not to enter duty of administering the estate of Alice into it, notwithstanding which the respondent Wall. He stood in the same trust relationentered into a stipulation, the effect of which ship to the beneficiary of her will as the exwas to delay the appeal and to stay the man-ecutor and executrix. datory injunction until March 1, 1919, and, coincident therewith, on or about August 24, 1918, the respondent received from the defendant $450 in satisfaction of the money portion of said judgment; that for over six months thereafter the respondent failed to pay the said money to his client, and during said period purposely concealed from his client the fact that the respondent had collected the same, and until his client was informed by the attorney for the defendant in said action that the money had been paid. These facts also are conceded.

On behalf of the respondent in regard to the withholding of the money in the Wall estate from Alice Foley, the following quotation is made from his brief:

Bergin v. Haight, 99 Cal. 52, 33 Pac. 760. His misrepresentation concerning the law of this state to his trustee residing in another state was one of fact and fraudulent.

[2-4] In view of the admissions of the respondent no conclusion is possible but that he has been guilty of several acts involving moral turpitude. "As a good moral character is a condition precedent to admission to the bar, so it is a requisite condition for the rightful continuance in the practice of the profession. Ex parte Brounsall, 2 Cowp. 829; Penobscot Bar v. Kimball, 64 Me. 146; Strout v. Proctor, 71 Me. 290; Delano's Case, 58 N. H. 5; In re Davies, 92 Pa. St. 120; Ex parte Wall, 107 U. S. 280." In re O., 73 Wis. 602, 42 N. W. 221. "It is indispensable that an attorney be trustworthy. And he is not trustworthy "The only explanation offered by the respond- if he is capable of improperly applying to his ent in his defense to this charge was that at own use his client's money, whether he inthe time he received this money he was engaged in extensive litigation, his compensation tends to return it or not." In re Treadwell, for his legal services being rendered therein 67 Cal. 353-358, 7 Pac. 724, 728. Where atbeing dependent upon the successful outcome torneys have mingled their client's money of said litigation; that said litigation was pend- with their own and have used it for their ing at the time he received the said money, and own purposes, even though, as in this case, continued for a period of fourteen months; settlements were thereafter made with their that during this period respondent received no clients, particularly pending investigations money from his law practice, as his time was concerning their acts, courts have repeatedly exclusively engaged in the said litigation, and he was unable to borrow any money on his con- held that such conduct requires at least sustemplated fee in this litigation until on or about pension of the attorney for a period commenthe 1st day of March, 1918, when respondent surate with the wrongdoing. In re Dobbs, did borrow the sum of $1,350, and thereupon 173 App. Div. 605, 160 N. Y. Supp. 173; In paid to his client the amount due her in full. re Evans, 169 App. Div. 502, 155 N. Y. Supp. The respondent appropriated the money receiv- 491; In re O., 73 Wis. 602, 42 N. W. 221; In ed by him, as aforesaid, to his own use for livre Eisenberg, 173 App. Div. 598, 160 N. Y. ing expenses, during said period, anticipating Supp. 143; In re Treadwell, 67 Cal. 353, 7 an early determination of the said litigation, when he could have arranged for the return of It is ordered that the respondent be susthe said money so withheld; that during this period the respondent was practically insol-pended from his office as an attorney and vent; that respondent did not at any time con- counselor at law in the courts of this state

Pac. 724.

We concur: LANGDON, P. J.; NOURSE, J. to her injuries.

When there is a substantial conflict in the evidence, trial court will not be deemed to have abused its discretion in granting a new trial, when it has determined that the verdict or the finding is against the weight of the evi-11. Innkeepers 10-Instruction in relation to ordinance held proper. dence; it being the duty of the trial court to grant a new trial if it is not satisfied with the verdict.

(193 P.) Everts & Ewing and M. G. Gallaher, all of Fresno, for appellant.

C. K. Bonestell, of Fresno, for respondent. WASTE, P. J. This is an action for personal injuries sustained by the plaintiff in falling through an unguarded opening in the platform of the fire escape adjacent to her room, on a building in the city of Fresno, owned by the defendant Rowell, and in which the defendant Whistler, as lessee, conducted a hotel. The action was instituted against both the owner and lessee. They appeared separately by demurrer to the amended complaint, that of the defendant Whistler being overruled; that of the defendant owner, Rowell, was sustained, without leave to amend, and judgment was entered in his favor. The plaintiff, the appellant here, appealed and the judgment was reversed by this court, a hearing in the Supreme Court being denied. Marr v. Rowell, 185 Pac. 1000. In the meantime the action was tried as between plaintiff and the defendant Whistler. The jury rendered a verdict, fixing the plaintiff's damages in the sum of $6,050, for which amount the judgment was entered. Thereafter the defendant made a motion for a new trial, which was granted. This appeal is by the plaintiff from that order.

[1] The motion for a new trial was made upon three grounds specified in the notice, namely: Insufficiency of the evidence to justify the verdict; that the verdict was against law; and errors of law occurring at the trial. The order of the court specified that the motion was granted "on all of the grounds set forth in the said defendant's notice of intention to move for a new trial." Section 657 of the Code of Civil Procedure, as amended by St. 1919, p. 141, provides that "When a new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify; other wise, on appeal from such order, it will be presumed that the order was not based upon that ground."

Appellant argues, therefore, that in determining the correctness of the court's ruling in granting a new trial, we are not at liberty to consider the insufficiency of the evidence as one of the grounds appealing to the lower court as a basis of its order. We think there is nothing in the point. The court's order specifies that the new trial was granted on all of the grounds set forth in said defendant's notice of intention, one of which is the insufficiency of the evidence to justify the verdict. While the form of the order is not to be commended, we think there was such a substantial compliance with the requirement of the Code section as to warrant us in concluding that the insufficiency of the evidence to sustain the verdict was one of the grounds upon which the new trial was granted.

It appears from the evidence in this case that at about 9:30 o'clock in the evening of the 6th day of August, 1917, the plaintiff and appellant, Josephine E. Marr, applied to the respondent Whistler for a room in the Kern-Kay Hotel in the city of Fresno, kept by him. He assigned her to room 25, and immediately conducted her to it. This room was at the end of the hallway on the second floor of the hotel. At the opposite side of the room from the door opening into it from the hall there was a doorway giving access to the floor of the lowest balcony of a fire escape. In this doorway was an ordinary swinging wood door, opening into the room, which was open at the time. There was also a screen door opening out, which at the time was closed, but neither locked, barred, nor latched. At about 10 o'clock, it being dark, the appellant swung the screen door open and stepped through the door leading to the fire escape on the outside. She took hold of the iron railing, and immediately fell through an aperture in the platform, falling to the ground, a distance of from 18 to 20 feet, sustaining very severe injuries. The hole through which appellant fell was a rectangular opening, 22 by 24 inches, in the floor of the fire escape, and about 18 inches of the opening was directly in front of the door through which the appellant stepped. The near margin of the opening was about 22 inches from the doorsill. The appellant testified that, looking through the screen door, she saw the railing of the fire escape, and believed that the platform was a balcony for the use of the guests of the hotel. She denied seeing the ladder of the fire escape leading to the floor above. She had previously been a guest at the hotel, was familiar with the fire escape in another part of the building, which was through a window to a platform barred by an iron railing. Her testimony is that she did not know that the door through which she walked led to the fire escape outside of room 25, but thought that the balcony was a perfectly safe place, she having been informed by another woman resident of the hotel that she had used it as a place on which to sit and dry her hair. She had heard room 25 referred to as a "fire escape room" but did not know that the balcony onto which she stepped, through the unprotected door, was a part of the fire escape. Because of the darkness, she testified, she did not see the opening in the platform.

An ordinance of the city of Fresno, in force at the time of the accident, provided that the floor or bottom of the lowest balcony of every fire escape should have no opening or open space therein, of a greater width than one inch. It also provided that where fire escapes could not be so placed as to be accessible from the hall or corridor, and where the only means of reaching the fire escape was through a room, the door of such

room should be a sash door, over which | ed, so she states in her brief, "to negative should be suspended a light of not less than contributory negligence" on her part. These eight candle power, encased in a red-colored were that she had no notice of the dangerous globe, which should be kept continuously condition of the fire escape, could not see its lighted from sunset to sunrise of each day, condition from the room, did not know that and in addition there should be painted upon the platform was part of the fire escape, but the wall, contiguous to this light, or upon believed it was a balcony for the use of a sign suspended not more than 12 inches | guests in the room. These allegations were below it, the words "To the Fire Escape," squarely denied by the defendant, and we do the letters to be not less than 3 inches in height. While it does not appear that there was any lighted red danger signal, as required by the ordinance, the hallway adjacent to room 25 was shown to be fairly well lighted, and on the cross-examination the appellant admitted that on the night of the accident there was a sign on the wall, within 5 or 6 inches of the right-hand side of the door leading into the room, which bore the legend, "Fire Escape through This Room."