Full opinion text
LAWLOR, J. The petitioner, David Jennings Baird, a minor, by Lydia M. Valencia, guardian of his person and estate, filed an amended petition praying for partial distribution to him of the above-entitled estate as the adopted child and heir of decedent. The petition alleges that petitioner is the illegitimate son of Miss Valencia and decedent; that decedent died after the birth of petitioner and that before his death, and within the meaning of section 230 of the Civil Code, he adopted petitioner as his own child; that petitioner is the sole surviving issue and only child of decedent ; that decedent left an estate consisting of real and personal property; and that he made a last will in which no provision was made for petitioner. Petitioner prayed an order of court distributing to him the whole of decedent’s estate, or such part thereof as the court shall direct, on the delivery of a -bond to the executor and executrix of the said will. An answer, denying, among other things, that petitioner is the child of, that he was adopted by or was in any way related to decedent, was filed by I. I. Brown, executor of said will, and by Veronica C. Baird, as executrix of and legatee and devisee under the said will. The issues of adoption were tried by jury and the special verdicts were in favor of petitioner. The court adopted the special verdicts of the jury, made findings of fact and conclusions of law, and entered its decree of partial distribution awarding to petitioner twenty $1,000 Liberty bonds, 221 shares of the capital stock of the Sausalito Land and Ferry Company, and an undivided fourth interest—decedent’s whole interest—in certain lands situate in Contra Costa County. An appeal from the verdict, from the entry thereof and from the order and judgment was taken by Veronica C. Baird, individually, and as legatee and devisee under the said will of decedent, and as assignee of the interest of her sons, Miles T., Benjamin H., and Thomas R. Baird, as legatees and devisees under the said will. A second appeal from the decree of distribution was taken by Veronica C., Benjamin H., and Thomas R. Baird. A third appeal was taken from the verdict, from the entry thereof, from the order and judgment, and from the whole thereof, by C. H. Williams and R. C. Farley, individually; Adelaide McColgan, administratrix with the will annexed of the estate of D. A. McColgan, deceased, and F. W. Morrison and R. C. Farley, as trustees. This is the third trial of the issues of adoption. The first was had before the court sitting without a jury. Judgment was given against respondent and it was reversed on appeal upon the ground that the court erred in refusing his demand for a trial by jury. (Estate of Baird, 173 Cal. 617 [160 Pac. 1078].) The second trial was by jury and the verdicts and judgment were in favor of respondent. The judgment in that case was reversed upon the ground that a case of adoption had not been established. {Estate of Baird, 182 Cal. 338 [188 Pac. 43].) The claim of respondent is that beginning a year before the birth of the child decedent and Miss Valencia, although not married, accomplished all the relations of man and wife and that she had no sexual intercourse with any other man; that from the date of respondent’s birth until his own death decedent publicly acknowledged his paternity; that with Miss Valencia he had a family in the St. Helen and Octavia Apartments and at 230 I Street, in the city and county of San Francisco, into which he received respondent and that he otherwise treated him as a legitimate child. Respondent was bom in the St. Helen Apartments at 5 A. M., December 7, 1906, and following a debauch decedent died in the house at 230 I Street at 10 or 11 o’clock on the morning of November 25, 1908, a few months after he passed into his twenty-ninth year. According to the evidence, Miss Valencia and decedent first met in 1898 and beginning in 1902 they entered upon an illicit relationship which continued until his death. Miss Valencia claims that they lived together as man and wife and that the relationship would have ripened into marriage but for the opposition of his relatives. Appellants claim that decedent associated with Miss Valencia for purposes of dissipation and illicit sexual intercourse and that the relationship had no other significance. Decedent never married. Prior to the San Francisco disaster on April 18, 1906, the couple occupied the relation of mistress and lover in several abodes in San Francisco. At the time of the fire their relationship was being carried on in the Alexandria Apartments at 570 O’Farrell Street. A week or ten days later they took up quarters at 1310 Divisadero Street in a cottage owned by Miss Valencia’s mother. The next abode was at the St. Helen Apartments at 2070 O’Farrell Street. They occupied this apartment for six or seven months, then moved to a room at the Octavia Apartments, and from there to a house at 230 I Street, which was purchased by decedent for Miss Valencia. Following his death the place was sold and Miss Valencia received what was left. Throughout the relationship between decedent and Miss Valencia he had relatives with whom he associated when they were in San Francisco. His mother, Mrs. Veronica C. Baird, a -widow, visited Europe annually. He had a sister, a brother, Miles T. Baird, and two half-brothers, Benjamin H. and Thomas R. Baird. His eldest brother, John R. Baird, died in an accident in San Francisco in December, 1905. The sister married about this time and with her husband located in New York, but made occasional visits to San Francisco. During the entire period of his relationship with Miss Valencia decedent maintained quarters in hotels and other places in San Francisco, where at times he lived with his relatives. 1. Appellants’ first contention is that the second decision (Estate of Baird, 182 Cal. 338 [188 Pac. 43]) established the law of the case and that there is no change in the record herein in the essential facts upon which the above decision was based as to the asserted receipt of respondent into the family of the decedent and otherwise treating him as a legitimate child. Respondent’s position is that the principle of the law of the case has no application whatever to the trial of an issue of fact. It is claimed that the decision on the former appeal was a decision on a question of fact and not of law and that therefore the doctrine of the law of the case does not apply. We quote what was said by respondent after asserting that important evidence must have been overlooked in the department decision: “In the present instance it is not necessary to consider the question whether important evidence in favor of petitioner was overlooked on the former appeal for the reason that many new witnesses and much additional evidence was introduced on the last trial to which the previous decision of this court, not having had it before it, could have no application whatever.” Since appellants claim the evidence on this trial is substantially the same as on the last, and respondent contends it is different, and is sufficient to justify an affirmance of the judgment, we will discuss the former decision (Estate of Baird, 182 Cal. 338 [188 Pac. 43]). And as respondent seeks to avoid the effects of the former decision and claims it is not only erroneous but that it does not establish the law of the case, it will be proper to consider the contention, although the nature and effect and the scope of the doctrine have been so frequently considered in this state that further discussion of the subject would seem to be a work of supererogation. The reasons for the rule known as the law of the case are not always stated in the same way; in fact, various reasons have been assigned for this well-established principle. At the outset of the discussion, and before commenting upon the cases cited by the respondent, we may say that an excellent discussion of the subject of the law of the case as established in this state will be found in 2 California Jurisprudence, 944, beginning with section 555, to and including section 569. The reason for the rule is stated in section 556. We will not undertake an elaborate discussion of the multitude of authorities in this state upon the subject of the law of the ease. In a discussion of the principle excerpts from opinions may be misleading or entirely inaccurate. For instance, one of the cases relied upon by the respondent is Allen v. Bryant, 155 Cal. 256 [100 Pac. 704]), where it is said: “The sole reason for the existence of the doctrine is that the court, having announced a rule of law applicable to a retrial of facts, both parties upon that retrial are assumed to have conformed to the rule and to have offered their evidence under it. Under these circumstances it would be a manifest injustice to either party to change the rule upon the second appeal.” If this were the sole reason for the existence of the principle it might be true that in this case we would be justified in disregarding the law of the case for the reason that upon the last trial the respondent, at least in his proposed instructions to the jury, hereinafter discussed, did not attempt tó conform to the rule laid down upon the former appeal. There are, however, other reasons for the rule sufficiently set forth in the section cited in 2 California Jurisprudence, to which we shall refer without further discussion. The rule of the law of the case may be succinctly stated as the rule requiring both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong. It is sufficiently obvious as scarcely to require a statement of the proposition upon this appeal that the decision of this court upon the second appeal established as the law of the case that all the evidence adduced at the previous trial was insufficient as a matter of law to establish a legal adoption of the child. If any authority is needed for so obvious a proposition it will be found in a decision by this court in Bank in Brett v. S. H. Frank & Co., 162 Cal. 735, 738 [124 Pac. 437]. It was there held that a decision on appeal that the evidence in the case was insufficient to go to the jury and that the court should have granted a nonsuit was the law of the case, and that where the evidence upon the next appeal was not materially different the law of the case should control in the decision, both in the superior and appellate courts. The rule is also well stated by Mr. Justice Hart in the opinion of the district court of appeal, third district, in Merchants’ Nat. Bank v. Carmichael, 50 Cal. App. 749 [196 Pac. 76], with a collation of the authorities, as follows: “If then, it be true that, as counsel for respondent con- , tend is the fact, the evidence received at the two trials of the action is substantially the same in all vital particulars, it of necessity follows that the doctrine of the law of the case applies, and per consequence the instrument sued on must be held to involve a stated account; and this would .be so even if it were necessary to concede that the Supreme Court was in error in holding that said instrument involved -an account stated. (See 2 Hayne, New Trial and Appeal, p. 1658; Dewey v. Gray, 2 Cal. 374; Clary v. Hoagland, 6 Cal. 685; Gunter v. Laffan, 7 Cal. 588; Cordier v. Schloss, 18 Cal. 576; Phelan v. S. F., 20 Cal. 39; Haynes v. Meeks, 20 Cal. 288; Davidson v. Dallas, 15 Cal. 75; Ritter v. Stevenson, 11 Cal. 27; Learned v. Castle, 78 Cal. 454 [18 Pac. 872, 21 Pac. 11]; Burton v. Burton, 79 Cal. 490 [21 Pac. 847]; Emeric v. Alvarado, 90 Cal. 444 [27 Pac. 356]; Jaffe v. Sitae, 48 Cal. 540; Shwpstein v. Friedlander, 63 Cal. 78; Blankenship v. Whaley, 142 Cal. 566 [76 Pac. 235]; Franz v. Mendonca, 146 Cal. 640 [80 Pac. 1078]; Lambert v. Bates, 148 Cal. 146 [82 Pac. 767]; Ellis v. Witmer, 148 Cal. 528 [83 Pac. 800]; Emerson v. Yosemite, 149 Cal. 50 [85 Pac. 122] ; Reeve v. Colusa, 151 Cal. 29 [91 Pac. 802].)” Upon the second appeal the court will not only look to the opinion of the court on the previous appeal, but also to the record for the purpose of determining whether or not the law of the case should control in the determination of the second appeal (McKinlay v. Tuttle, 42 Cal. 570, 576; Otten v. Spreckels, 183 Cal. 252, 254 [191 Pac. 11]). The respondent, after stating the rule of the law of the case, claims that this principle has no application whatever to the trial of an issue of fact. To avoid misunderstanding, we quote in part from the brief as follows: “The decision of an Appellate Court upon a law point is, of course, controlling even if erroneous through all subsequent proceedings in the case, both in the trial court and in the Appellate Court again. There can be no question that this is the law in California as it is in every other jurisdiction. This principle has no application whatever to the trial of an issue of fact, otherwise- it would be quite unnecessary for the Supreme Court ever to grant a new trial. Granting a new trial is for the purpose of setting the case at large so that the successful party, against whom a decision has been reversed, may make out a better case and that the other side, if errors have been committed against him, may conduct himself in such a manner as to obtain a decision in his favor. It is not a decision that the testimony of the witnesses is not to be believed nor does it preclude the trial court from receiving the former evidence and drawing from that evidence any proper conclusions. ‘It is settled beyond controversy that a decision of this court on appeal, as to a question of fact, does not become the law of the case..’ Mattingly v. Pennie, 105 Cal. 514 [45 Am. St. Rep. 87, 39 Pac. 200]. It is only where the exact ease is again presented to the trial court upon the same evidence that the doctrine of the law of the case has any application and even, in that instance, its application is very much modified by certain principles to which we now direct attention. ...” In support of this contention the case of Allen v. Bryant, supra, is cited. It is claimed that this decision establishes two principles which we will state in the language of the respondent: “First, that the application of the doctrine of the law of the case does not apply where the evidence is different and, secondly, that it does not apply where it appears that the previous decision overlooked important evidence, ...” As we have already pointed out, neither of these propositions is supported by the authorities. The evidence may be different and yet unless it is substantially different in a material respect, the doctrine of the law of the ease applies, and it applies notwithstanding the fact that in the previous decision evidence contained in the record is not quoted or cited in the opinion. These principles are established by the case of Brett v. S. H. Prank & Co., supra, and the ease of McKinlay v. Tuttle, supra. The appellate courts in this state have no jurisdiction to pass upon questions of fact as distinguished from questions of law. If the court should inadvertently attempt to decide a question of fact as distinguished from a question of law, that decision would, of course, not be binding. As we have already said, however, to determine that the evidence adduced at the trial, with all the inferences properly deducible therefrom, does not support the claim of adoption, is a determination of a question of law. We have declared that under the doctrine of the law of the case the decision rendered upon the former appeal is binding both upon the trial court and upon this court. There are statements in some opinions by this court which justify some further discussion of that matter in view of the fact that the respondent insists that the former opinion is not binding because it passed upon a question of fact. In the case of Sneed v. Osborn, 25 Cal. 619, 628, this court, in denying a petition for rehearing, declared: “Facts are stated, in the opinion of the Court, solely that the course of reasoning adopted by the Court, and the principles enunciated, may be the better understood. The Court does not assume to find the facts in a case, for it has no authority to do so, except in case where an ultimate fact results, as a conclusion of law, from the proof of certain prior facts. If this Court states the evidence in a cause, whether correctly or incorrectly, the statement in no manner controls the Court below, and cannot prejudice the parties, where a new trial is had. It is upon questions of law, that the decision of the appellate court becomes the law of the case, and not upon questions of fact.” This observation of the court in denying a rehearing was directed to a situation where the court for the purpose of deciding the questions of law involved in the case states sufficient of the facts involved to disclose the pertinence of the law points decided. It had no reference to a case where the whole decision turned upon the sufficiency of the facts established by the record to support the judgment of the trial court. In the case of Robinson v. Thornton, 114 Cal. 275 [46 Pac. 79], it was said, with reference to a prior decision in the ease: “But it was further decided . . . that the evidence taken at the former trial was sufficient to warrant the finding that Thornton did have such possession for said statutory period, and the judgment was reversed on account of said adverse possession of Thornton. But the question of such adverse possession is one of fact, and upon a subsequent trial the jury were not estopped by the decision of this court from finding the issue of such adverse possession differently from the finding at the former trial. They might have found that issue differently, even though the testimony was the same as at the former trial, but, as a matter of fact, there was at the latter trial additional testimony on that point. It was for the jury, therefore, to determine whether or not there was such adverse possession; and the court erred in taking that question away from the jury.” As we understand the authority it merely holds that when the question of adverse possession is involved in a case upon conflicting evidence, the jury may decide either way, and if upon one appeal it is held that there was sufficient evidence of adverse possession to support a finding and judgment based upon such adverse possession, upon a retrial the court or jury may determine the conflict in exactly the opposite way and would not be precluded from doing so because of the fact that on a former appeal the court has held there was sufficient evidence to justify a finding to the contrary. The case is not authority for holding that where upon an appeal the court has held the evidence insufficient as a matter of law to establish a fact, the same question can again be submitted to a jury and decided adversely to the conclusion of the appellate court upon the matter of law. The decision of this court in Sneed v. Osborn, supra, and the decision in Wallace v. Sisson, 114 Cal. 42 [45 Pac. 1000], are cited in the opinion in Allen v. Bryant, supra, in support of the doctrine there enunciated. The decision in Wallace v. Sisson, supra, was concurred in by only three justices in Bank upon the point to which that case is cited, and was concurred in by the fourth justice (Garoutte) upon the ground that the evidence in the record under review was not the same as that presented to the court upon the former appeal. The point concurred in by three justices in Bank was not a decision by the court. If the opinion in Allen v. Bryant, supra, justifies the contention of the respondent, it is not supported by the authorities cited and is in conflict with and in effect overruled by the subsequent decisions of this court hereinabove cited. This must be true because a decision by this court that the evidence is insufficient'to justify a finding or a judgment is necessarily a decision upon a question of law, for upon no other theory could the court pass upon the question. It should be further said with reference to the decision in Allen v. Bryant, supra, that upon the second appeal the court was of the opinion that upon the former appeal the district court of appeal had invaded the province of the jury in passing upon the credibility of witnesses. It is clear from the foregoing discussion that the last decision was a decision upon a question of law and not of fact, and that without regard to the correctness of the statement of the evidence, or the legal principles declared therein said decision established the law of the case and was binding on the court below as it is binding here. 2. We will next consider respondent’s contention that the first Department decision (Estate of Baird, 173 Cal. 617 [160 Pac. 1078]), established the law of the case. Respondent’s contention is that there is a conflict between the first and the second Department decision and that “it is not at all clear that this conflict in these decisions does not take away the application of the rule of the law of the ease and set everything at large under the decision of this Court in the case of Gage v. Downey, 94 Cal. 241 [29 Pac. 635], This much, however, is clear, the petitioner has as much a right to invoke the application of the law of the case based on the first decision rendered by Mr. Justice Shaw as the appellants in this case have a right to apply the rule of the law of the case based on the second decision.” In view of the fact that the concurrence of one of the justices was limited to the single ground that the trial court erred in refusing respondent’s demand for a jury trial, the decision on that question would alone constitute the law of the ease since the concurrence of three justices is necessary for a Department decision. (Sec. 2, art. VI, Const.; see, also, sec. 4, art. VI, Const., as to the district courts of appeal before the amendment of November 5, 1918; Turner v. Fidelity Loan Concern, 2 Cal. App. 122, 141 [83 Pac. 62, 70]; Matter of Coburn, 165 Cal. 202 [131 Pac. 352].) In addition to this, the first Department decision expressly-refrained from passing on the sufficiency of the evidence to constitute an adoption in these words: “Nothing we have said is to be taken as an expression of opinion on our part regarding the sufficiency of the evidence to prove that the decedent received the child into his family and treated it as if it were a legitimate child.” 3. We will now take up respondent’s contention that the additional evidence received on the last trial put the case at large so that the doctrine of the law of the case does not apply. Appellants’ briefs have undertaken to segregate the additional from the former evidence, but respondent’s brief, after contending that the doctrine of the law of the case does not apply, presents both classes of evidence together. The testimony relied on in this connection is, first, that of Miss Valencia’s masseuse, who did not testify on the second trial, to the effect that in a conversation with decedent in the St. Helen Apartment while Miss Valencia was present the witness asked him why they did not get married. His reply was that they would “some day but it cannot be done now. My mother is too prejudiced, she is too bitter . . . against him presumably being married to Miss Valencia”; that she asked him if he had not shown his mother the baby and offered to take it to his mother, but he said': “She is too bitter ... it would not do any good, she is made of stone. . . . Q. Did Mr. Baird indicate to you at that time in his conversation whether or not his mother knew about the baby being in existence? A. He said his mother knew of the beautiful baby, that he himself had told her, but that she did not—she turned a deaf ear to it all. Q. He said though, that she had never seen the baby? A. He said she had never seen the baby, that she did not want to see the baby.” In Miss Valencia’s testimony as to the asserted incident she did not state that decedent said his mother knew about respondent. We will at this point consider the purpose for which this testimony is competent. The position of appellants with reference to it. is that it cannot aid respondent because, “It is not evidence that Mrs. Baird did know of the existence of the child, or that deceased ever did tell her of it. . . . If offered as proof of the fact that decedent did tell his mother of the child, this evidence would have been clearly hearsay and inadmissible. It was, however, admissible as bearing upon decedent’s attitude toward the child.” Section 1853 of the Code of Civil Procedure declares: “The declaration, act or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest.” Section 1870, subdivision 2, of the Code of Civil Procedure, provides: “In conformity with the preceding provisions, evidence may be given upon a trial of the following facts; 2. The act, declaration, or omission of a party, as evidence against such party. ’ ’ The testimony of this witness cannot be regarded as a declaration against interest, for to be competent as such the declaration must, in the absence of a statute, be against a pecuniary or proprietary interest at the time when made. (Smith v. Sanson, 34 Utah, 171 [18 L. R. A. (N. S.) 520, 96 Pac. 1087].) Here any interest of decedent which might have been involved at the time he made the asserted statement was entirely too remote to give it probative value within the requirements, of a declaration against interest. As distinguished from a declaration against interest the statement was an admission to the witness of paternity and of his attitude toward the child. We conclude that the statement of decedent in the conversation with the masseuse was an admission of his paternity and. of his attitude toward the child, propositions as to which a great deal of evidence was introduced in the former trials; it was, however, not competent evidence that decedent told his mother of the existence of the child. It follows that the part of this testimony which is competent is addressed to •the elements of paternity and public acknowledgment—which were assumed in the last Department opinion to have been established. We do not understand that respondent’s brief claims the evidence was admissible other than as tending to prove public acknowledgment of paternity. The portion of the testimony of this witness held to be admissible, whether it be regarded as tending to prove public acknowledgment or as showing the attitude of decedent toward the child, presents no new principle; but, as we have stated, it was not competent to prove decedent told his mother of respondent. The next additional evidence was furnished by Miss Valencia. She testified to the effect that in 1905, when decedent, his mother, and a Miss Klein, a friend of the Baird family, were returning from a European trip, she took the same train from Chicago to New York and occupied a berth adjoining the one occupied by Mrs. Baird; that Mrs. Baird upset an ink bottle, asked Miss Valencia’s permission to sit in the same seat with her while the damage was being repaired, which request was granted, and that she recognized Mrs. Baird and thinks “she must have known me”; that Mrs. Baird suddenly left the seat and called to.her son; that at dinner-time he said to her: “You must leave this train”; that she heard his mother say “she would not travel an inch with that Valencia woman. You put her off this train”; that with his mother he left for San Francisco that evening but Miss Valencia remained over in Chicago two days, and he met her at the ferry when she arrived in San Francisco. Mrs. Baird, in her deposition, disclaimed any knowledge of Miss Valencia being on the same train with her and her party. Miss Valencia also supplied this additional evidence: She testified for the first time that she met Mrs. Baird at the physician’s office when decedent was confined in the sanitarium, but that she would not recognize her; that the Baird family had her arrested for vagrancy in 1903 on a complaint sworn to by the attorney for the Baird family. The occasion of decedent being in the hospital will be later referred to. She also testified that Mrs. Baird tried to have her excluded from the hospital but that decedent told the physician he wished her to come. Two police officers, one in rebuttal, neither of whom appeared in the earlier trials, also testified that Miss Valencia was arrested on the charge of vagrancy in 1903 and that it was dismissed in the police court. They also testified that decedent protested the arrest and Miss Valencia quoted him as saying he would tell the attorney “to lay off this business and let you live in San Francisco, and I will have him tell the family, my sister and my mother, to leave us alone.” It may be assumed from this and other evidence on the point the jury inferred that in 1903, about the time it is claimed decedent tried to borrow $5,000 from his sister to get rid of Miss Valencia, the attorney for the Baird family swore to the complaint in question and that he and decedent’s sister were active in an attempt to break up the relationship. Miss Valencia also testified that before leaving 1310 Divisadero Street to go to the St. Helen Apartments, two police officers came there and said to her, “Well, we have orders to come here and back up a wagon for you”; that decedent told her he had been to the police station about the matter and said: “You will not have any more trouble, I told them you were my wife and this was my baby, and I was supporting this place.” The child was not born at the time and when this was called to her attention she offered an explanation. Miss Valencia was the only witness who testified to this asserted incident. Under the rule applied to the testimony of the masseuse the statement imputed to decedent that he would tell the attorney to deliver his message to his relatives is not evidence that it was delivered, nor is the statement of the police officers proof that his relatives knew the couple lived together at 1310 Divisadero Street or that they were responsible for the statement of the police officers. Miss Valencia also testified that Mrs. Baird saw her and the child at a dry-goods store “more than once” in January, 1908; that she only stared at them and walked out of the store because they were there; and that when Mrs. Baird’s deposition was being taken she refused to remain in the same room with Miss Valencia. The latter enlarged on her former testimony that the ring “Dave to Dodie” was a wedding ring given to her before the birth of respondent; that decedent always wanted to marry her, and of her refusal to marry him when one of the unmarried couples, later referred to, were married in Redwood City a few weeks before he died. The physican gave additional testimony to the effect that when decedent was in the sanitarium Mrs. Baird asked him if he would prohibit Miss Valencia from calling on the patient; that she referred to Miss Valencia as a very bad woman, and that she asked him if he knew they were not married, to which he answered “yes.” Mrs. Baird denied that she had seen Miss Valencia at the sanitarium and the physician said he did not believe she had. On the last trial the physician made this additional statement: “Dave had asked me to keep this quiet as long as I could. He did not want me to file the certificate at all. Neither did Miss Valencia. But it was the law, so I had to do it. I went to the Health Office. At that time Dr. . . . was in the office. . . . I asked him to keep that certificate from getting into the papers, so Mrs. Baird would not find it out. . . . David Baird asked me not to file the birth certificate so his mother would not find it out. I asked the man in charge of the Health Office to hold it up and keep it out of the newspapers, that David wanted it.” The deposition of the milliner was not offered on the second trial, but was read into' the record on the third. Her testimony is to the effect that she saw decedent at the abodes playing with respondent; that they went by the name of “Tyler” but that she did 'business with decedent under his true "name and knew Miss Valencia as “Mrs. David J. Baird.” This new evidence is clearly cumulative as it is addressed to subjects concerning which a great deal of testimony had been received on the former trials. Two real estate partners testified that about two months prior to decedent’s demise he commissioned them to sell the place at 230 I Street, and to secure a house north of the park in the Richmond district; but that decedent’s death intervened to prevent the transaction from going through. In connection with the proposed property deal Miss Valencia testified that decedent was at that time planning “to take her and the baby away from San Francisco for good.” This apparent inconsistency was sought to be explained on cross-examination. A shoe clerk testified that decedent told him he would marry Miss Valencia when they were settled at 230 I Street. Miss Valencia’s additional evidence presents no new facts within the contemplation of the rule. The portion covering the asserted train incident, the meetings with Mrs. Baird in the physician’s office, the episode at the taking of the deposition, the occasions at the dry-goods store, the arrest foi vagrancy, and the action of the officers at 1310 Divisadero Street, all tend to prove Mrs. Baird’s hostility toward her, as did the statements made by Mrs. Baird to the physician, but, as will presently be shown, the hostility of Mrs. Baird and her daughter toward Miss Valencia was to be inferred from the evidence on the previous trials. The additional testimony of the physician covering his efforts to keep the contents of the birth certificate out of the newspapers is along the line of his previous statements that decedent did not want his mother to know about respondent and that he thought it was the fault of the board of health the certificate was not seasonably filed.. At this point we will state the legal test by which it is to be determined whether the change in the evidence is sufficient to avoid the rule of the law of the case. The authorities use such expressions as that the new evidence must be “materially,” “essentially,” or “substantially” different before it can be held the doctrine does not apply. (2 Cal. Jur., “Appeal and Error,” see. 557 et seq.; Brett v. S. H. Frank Co., 162 Cal. 735 [124 Pac. 437] ; McEwen v. New York Life Ins. Co., 187 Cal. 144 [201 Pac. 577] ; Burns v. Jackson, 53 Cal. App. 345, 347 [200 Pac. 80]; Young v. Southern Pac. Co., 189 Cal. 746 [210 Pac. 259] ; Estate of Cook, 83 Cal. 415 [23 Pac. 392] ; Heidt v. Minor, 113 Cal. 385 [45 Pac. 700]; Daniel v. Smith, 75 Cal. 548 [17 Pac. 683]; Muller v. Swanton, 17 Cal. App. 232 [119 Pac. 200] ; Morrell v. San Tomas Drying etc. Co., 30 Cal. App. 194 [157 Pac. 818.]) The rule is binding as to questions which involve and are controlled by the same principles (Tally v. Ganahl, 151 Cal. 418 [90 Pac. 1049]). Additional evidence merely cumulative to evidence of the same class given on the first appeal will not carry a question outside the operation of the rule as to the law of the case, but to successfully escape the rule a new and substantial fact must be brought into the case on the subsequent appeal. (Alerding v. Allison, 170 Ind. 252 [127 Am. St. Rep. 363, 83 N. E. 1006].) None of the additional evidence is essentially different from that received on the second trial. It does not present any new substantive fact, it involves no new principle, and where it supplements the former evidence it comes under the cumulative rule. 4. We will pause at this point to consider respondent’s contention that the additional evidence answers paragraphs H and I of the law of the case, infra. Concisely stated, the claim is that because of the hostility of the Baird family toward the mother and the child decedent did not acknowledge his paternity nor introduce respondent to his relatives. In discussing the subject matter of paragraph I of the law of the case, infra, it is argued that, “In the former appeal it was ruled as one of the grounds of reversal that the illegitimate child was not introduced to and known by the decedent’s mother and his blood relatives. In the present case evidence • was introduced to show why the child was never taken to decedent’s mother. This evidence related to the hostility, of the mother and of decedent’s family toward the child’s mother and to the child itself, and to the necessity which the decedent was under of keeping the child and its mother away from his family.” First, with respect to the animus• of the Baird family toward Miss Valencia. Notwithstanding the evidence is not new on this trial, we will describe in this connection certain episodes asserted to have occurred in 1903-4, which may be conceded to be the basis of such hostility as Mrs. Baird and her daughter entertained for Miss Valencia. Early in the litigation the depositions of Mrs. Baird and her daughter were taken. They were read in evidence on each of the three trials. It appears from these depositions that the sister of decedent testified that in the fore part of 1903 she was notified over the telephone to come to 318 O’Farrell Street—“the Kingston”—to get decedent or he would be turned over to the authorities. The witness testified she found him suffering from delirium tremens in a room in which she afterward learned Miss Valencia lived, and that when decedent saw her he exclaimed, “Oh, my God, have they brought you here?” He was taken by his sister to the residence at 2513 Pacific Avenue, where he was then residing with her and to whom he appeared on the following morning to be in a more irrational state of mind. However, she observed, as he lay in bed, a pistol on his mattress as he declared, “Those thieves have taken my watch and I am going after them.” She became alarmed and reported the matter to the police commissioner, a friend of the Baird family. This and other circumstances lead us to conclude that the jury would have been justified in inferring that the charge of vagrancy emanated from the police commissioner and decedent’s sister. The witness also testified that not long after the above incident she was informed over the telephone by a Mrs. Rogers, residing at 1776 Pacific Avenue, that a plot had been hatched to marry decedent to Miss Valencia. She quotes Mrs, Rogers to the effect that the ceremony was to be performed at a beach resort, and that a colored minister was to officiate. The witness enlisted the aid of her brother, who, with a friend of the family, called at 1776 Pacific Avenue, but it appears Mrs. Rogers was not in. Nothing further appears in the record concerning the incident. According to the sister it was about this time decedent tried to borrow the $5,000 from her to buy Miss Valencia off. Concerning this proposal a meeting was held in the office of the family attorney, and evidently the money was refused, the witness declaring she did not believe Miss Valencia would go away. The sister testified this was the first time she ever heard of Miss Valencia. As we understand the record, the next event which was brought to the attention of decedent’s relatives was when an account of the asserted stabbing of decedent by Miss Valencia appeared in the newspapers. Miss Valencia’s version of decedent’s injury was that he was cut by a piece of glass; the physician described it as a lacerated wound. Decedent’s sister discussed Miss Valencia with her brother and said he “ought to quit— . . . that he had given us enough notoriety.” It would appear from the evidence that Mrs. Baird was in Europe at the time of decedent’s attack of delirium tremens, the marriage plot, and the money matter. She testified to a conversation with her daughter on her return, however, and stated, “She told me that David was going with some woman by the name of Valencia; that she didn’t think she was a very nice woman.” The witness asserted this was the first time she ever heard of Miss Valencia. Mrs. Baird was in San Francisco, however, when decedent was taken to the hospital, and upon reading about it in the newspapers she visited him at the sanitarium. He told her he had been “cut by this woman”; begged her pardon and said he was “very sorry such a thing had happened to him, that he was quit of this woman, and he promised he would never have anything more to do with her.” We will presently discuss the testimony of Miss Valencia and the physician, from which it appeared decedent did not intend to keep the promise to his mother. Mrs. Baird testified that when she was in Europe in 1905, Mrs. Hopkins, a friend of the family, quoted the sister to the effect that the Baird Estate advanced money to decedent to get rid of Miss Valencia. The Baird Estate collected a claim against decedent’s estate for $7,700, represented by his promissory note dated November 1, 1905. There is no other testimony connecting Miss Valencia with this money and it does not appear she was questioned about it. The note must have been executed after decedent returned with his mother from the European trip of 1905, when it is claimed the train incident occurred. Decedent’s sister also testified that in 1904 a warrant of arrest was caused to be issued to take decedent into custody on a charge of insanity, and that after the San Francisco disaster, and up to the time of decedent’s demise, she was not aware the couple kept up their relations. Whatever the merits of the evidence touching these episodes may be, we do not attempt to decide. Our purpose in referring to this evidence is to show that Mrs. Baird and her daughter had learned of Miss Valencia as early as 1903; that they must have condemned her association with decedent, and that their attitude toward her has been a part of the evidence on all the trials. Now, with regard to the claim that the members of the Baird family were hostile to respondent. There is no evidence tending to dispute the testimony of Mrs. Baird and her daughter that the first time they heard of the child was .after decedent’s death. Of course, if they did not know of the baby before that event respondent’s present contention must fail. Upon this point we will review the evidence as to each member of the Baird family. The testimony of Miss Valencia is that when Miles T. Baird called at the St. Helen Apartment in April, 1907, before leaving for Australia, the child was asleep in another room, and that decedent remarked tó him, referring to respondent: “Miles, he is a dandy. He beats your boy all hollow.” The connection of this brother with the case is singular, to say the least, and upon the surface of things unaccountable. He never testified for either side, and respondent offered evidence that he was in King City at the time of the last trial. In one part of the record there is a mention of his deposition, but if one was-taken it has not appeared in evidence. Some time following his departure for Australia, in 1908 it seems, his mother joined him at Hull, England, and together they journeyed to San Francisco, arriving after decedent’s death. It appears that this brother had transactions with Miss Valencia following decedent’s demise. It was suggested that Miss Valencia knew Miles T. Baird before the relationship with his brother was formed. Questioned on the point she answered: “That has always been the opinion but I did not.” By way of supporting the claim that decedent had his residence with the mother and child, it was testified he kept his clothes in those places. The wardrobe was not produced by respondent at the trial, and there is evidence that an extensive wardrobe was found in decedent’s room at the Fairmont Hotel after his death. Accounting for her failure to produce the wardrobe at the trial, Miss Valencia explained that when Miles T. Baird was prosecuted on a criminal charge after his return to San Francisco and was released, he had no money and appealed to her for decedent’s clothes, which she gave to him. The other side submitted evidence that about this time he gave Miss Valencia a check for $150, which check was not honored. It also appears from her testimony that there were other money transactions between them. At all events, it is not claimed that Miles T. Baird was hostile to respondent. Benjamin H. Baird related a conversation he had with decedent at the Hotel Robins in September, 1908, at which time the witness stated decedent had been drinking and seemed greatly worried. We quote: “I am ashamed to walk the streets”—owing to Miss Valencia’s claim that he was the father of respondent. When asked why he drank so much he answered: “ ‘That is the only peace I have, is when I am drinking. . . . This woman, Dodie Valencia, has gotten it all around that a child she has is his.’ I said, ‘Why don’t you put a stop to it?’ and he said, ‘I am cut up enough now.’ ...” It is not claimed that Thomas R. Baird ever heard of the relationship or of respondent before decedent’s death. Notwithstanding the evidence to the contrary, it is claimed that Miles T. Baird and Benjamin H. Baird must have informed Mrs. Baird and her daughter of the child after they learned of its existence. As already indicated, Miles T. Baird talked with decedent about respondent in April, 1907, and joined his mother in England in 1908, but there is absolutely no evidence that he mentioned the child to her, to his sister, or to his half-brothers. In the state of the record, to hold to the contrary would be to draw one inference from another. So, too, as to Benjamin H. Baird. He testified he did not repeat to his relatives the conversation he had with decedent at the Hotel Robins about the mother and child. Moreover, his mother was in Europe and his sister in New York from the date of the conversation until after decedent died. It is also claimed that the colored family coachman or his wife must have mentioned respondent to Mrs. Baird. The records show the coachman testified on the first and second trials but not on the last trial. His wife did not testify at all. His testimony was to the effect that a member of a well-known San Francisco family told him it was being claimed decedent was the father of a child; also that a downtown merchant said to him: “Well, Miss Dodie Valencia claims that she has a baby by David.” The witness describes himself as backing away and refusing to listen. He testified that about a month after the incident with the merchant he repeated the statement to decedent who denounced it as a lie and concluded with an aggressive remark about the merchant. The witness denied mentioning the matter to Mrs. Baird. He served the family for thirty-five or forty years and it is stated in respondent’s brief that because Mrs. Baird presented him with a home he was no doubt influenced in his testimony. Here, again, there is no foundation for an inference that the witness repeated to the other members of the Baird family what had been said to him about the baby. The same rule applies to other testimony. It was shown there were photographs of respondent in decedent’s room at the Fairmont Hotel at the time of his death and it is claimed an inference is justified that Mrs. Baird saw the photographs, that she inquired about them and thus learned of respondent’s existence. But here, too, to draw an inference from this circumstance alone would be to enter the realm of speculation and conjecture. The testimony of the masseuse that the couple used the name of “Tyler” because of the hostility of Mrs. Baird to the mother and child is open to the objection that it was hearsay. At most it was a conclusion of the witness. It does not appear that she ever saw or came in contact with Mrs. Baird or had any knowledge of her bearing toward the mother or the child. The testimony of the milliner as to Mrs. Baird’s attitude and the reason for the use of the name “Tyler” is objectionable upon similar grounds. Miss Valencia’s testimony touching the asserted visits of Mrs. Baird to the dry-goods store is essentially a conclusion of the witness and is not evidence that Mrs. Baird knew or recognized the mother or the child. Another point is made in this connection. Answering the statement in the last Department decision that decedent was not estranged from his relatives the claim is made that from the time the association of Miss Valencia and decedent began he separated himself from his blood relatives, was estranged from them, and that their intercourse thereafter was confined to business matters connected with the Baird Estate. The claim of separation, and estrangement is entirely without foundation. No evidence has been offered to controvert the statement in the opinion that the relations between decedent and his mother were of the most intimate and affectionate, character. When John R. Baird, his eldest brother, died in December, 1905, decedent was most solicitous for his mother in her bereavement. For a time he slept in the same room with her and constantly showed her every attention. We have stated he was with her in Europe in 1905. He joined her and Benjamin H. Baird in the home of his sister in New York in the winter of 1907-8 on their return from Europe. The relations between decedent and his sister and brothers were such as usually obtain between relatives of that degree. His half-brothers, when they were in San Francisco, were frequently in his company and were entertained by him. In support of the claim of estrangement the point is made that decedent’s sister had urged the mother not to give money to the boys, but there is no intimation that she sought any advantage for herself in making this suggestion. The mother was, nevertheless, generous with her sons. It is shown that there was a difference of opinion between decedent and his sister as to two business matters. When she was keeping house for her brothers at 2513 Pacific Avenue the decedent refused to pay what she regarded as his proportion of the cost of some concrete and other work about the premises. He took the position that the regular monthly sum he paid was in full for everything. They failed to agree on this point and decedent gave up his room and went to live at the Grand Hotel, which was his home at the time of the asserted stabbing. The second incident occurred, on January 4, 1908, while visiting his sister in New York after the European trip of his mother and Benjamin H. Baird. He tried to sell his sister a portion of his stock in the Baird Estate. She declined the offer and said she would advise her mother not to buy it, but that they each would give him $1,000 to help him along. He became angry at this, and, according to her testimony, his relations with her were somewhat strained during the remainder of the visit. His mother decided to purchase the shares. The party remained in New York until January 9th, when they started for San Francisco, arriving on January 13th. It is these three incidents upon which respondent must base the claim that decedent was estranged from his relatives. There is evidence that decedent corresponded with his sister and that when he was abroad in 1905 he sent her a gift. The briefs of appellants do not question that following the episodes referred to both the daughter and her mother were opposed to decedent’s relations with Miss Valencia, but it nowhere appears that the disclosures ever disturbed the affectionate regard the members of the family had for each other; and there is no trace of proof to the contrary. When the relatives were in San Francisco decedent was frequently in their company and their relations with him appeared to be harmonious. On Christmas Day, 1906, less than three weeks after the birth of the child, Mrs. Baird had her sons at dinner, and until she left for Europe in April, 1907, the decedent was often in her company. He provided for his mother and half-brothers in his will and expressed himself as satisfied with it in 1907, nearly a year after the birth of respondent and at the very time it is claimed he was estranged from his relatives. Finally, it may be assumed in the light of the evidence that apart from the child decedent’s relatives would be opposed to any kind of relations 'between him and Miss Valencia. But this has appeared to be the fact ever since the litigation was entered upon. It would, however, require something more than the bare assertions in respondent’s brief to justify us in holding that if decedent evinced a desire to adopt the innocent child his relatives would have been hostile to the idea, or if they were, it would prevent him from making him his heir. There is no phase of the evidence in this case which would justify us either in concluding that in addition to Miles T. Baird decedent’s other relatives knew of the child, or that their attitude in respect to it was responsible for decedent’s failure to treat respondent as the father of a legitimate child would treat his offspring. • 5. It is claimed by appellants that certain instructions proposed by respondent and given to the jury ignore the principles of law-laid down in the last Department decision on the issues of receipt into family and otherwise treating the child as legitimate. In this connection it is argued that when these instructions are compared with other instructions that were given in accordance with the principles laid down in the decision “it is impossible to tell which was adopted by the jury in reaching their verdict (Rathbun v. White, 157 Cal. 248, 253 [107 Pac. 309]).” We are satisfied appellants’ contention must be sustained. Upon the last appeal it was necessary to lay down certain principles of law and to determine whether or not the evidence in the case satisfied those principles, failing in which it was declared that the evidence was insufficient to sustain the judgment. These principles were not only announced in the last Department decision in plain and unmistakable terms, but were embodied in the instructions given to the-jury upon the trial now under review. The court on the last trial gave to the jury paragraphs F, G, and I of the law of the ease, infra, substantially in the language of the decision. That the last Department decision established these principles as a matter of law was clearly recognized by the respondent in the petition for hearing in Bank filed upon the second appeal. We will quote from that petition some of the statements therein set forth in black-faced type, not for the purpose of binding the respondent by the more or less hastily prepared petition, but for the purpose of showing that the respondent then recognized that the decision did establish certain principles of law which, of course, would be controlling upon a new trial. It was asserted in the petition for hearing in Bank after the last Department decision: “The record establishes that the decedent received the petitioner into his family as his child and a member of his family. . . . Any objection that the existence of decedent’s family with petitioner was concealed from decedent’s mother and other blood kindred goes to the point of public acknowledgment, and it has no force in respect to the condition of reception into family and treatment as a legitimate child where paternity and public acknowledgment of paternity are admitted. . . . The Department opinion erroneously rules that decedent’s reception into his family of petitioner as his child, was invalidated for the purposes of Section 230, Civil Code, by reason of concealment of the existence of the family from decedent’s mother and other blood relations. . . . The decedent’s attitude and conduct toward petitioner establish his receipt of petitioner into his family as his child and member of his family. . . . The Department opinion, erroneously declares a rule that in cases arising under Section 230 where the father is a bachelor, proof of his treatment of his child as if it were a legitimate child, is not complete unless it includes evidence that the father informed his blood kindred of the child’s existence and his family with the child. . . . The Department overlooked, or failed to consider as material, a condition of the evidence showing that during a period of nine months while decedent was living with petitioner and petitioner’s mother, in a household and home in San Francisco, and decedent performing daily acts evidencing that he had received petitioner into his family, and was in every way treating petitioner as if he were a legitimate child, the decedent’s mother, sister and brothers were without the State of California, and that during such period the adoption of petitioner was complete, and under circumstances where objection on account of any charges of concealment would be untenable, if such an objection could be tenable in any case. . . . The opinion concedes that decedent did not attempt to conceal his relations with petitioner and petitioner’s mother, and that there was evidence that he freely, frequently and publicly proclaimed their relations. . . . The weight of the testimony concerning decedent using the assumed name of Tyler and his alleged concealment of the existence. of petitioner and of decedent’s family with petitioner, was a question specially considered in the trial Court. . . . The opinion assumes a different state of facts concerning alleged cordiality between decedent and his kindred than is shown by the record, and gives such assumption false weight in overturning the verdict and judgment of the trial Court. . . . The Department opinion overlooks the force of evidence of public acknowledgment in eliminating all idea of concealment, and in its bearing on receipt into the family and otherwise treating the child as a legitimate child.” With this statement by the respondent before it, as to the nature and effect of the last Department decision, the court in Bank denied the petition for hearing therein. Having thus unsuccessfully petitioned this court in Bank for a rectification of the asserted errors in the decision in Department, the respondent was apparently more successful in the trial court, for that court instructed the jury in accordance with some of the contentions advanced in his petition for hearing in Bank and in his briefs upon the previous appeal, which instructions he now seeks to justify and uphold upon the ground that the last Department decision was erroneous and that it was, therefore, unnecessary for the trial court to follow it. The instructions we are about to quote are inconsistent with those we have heretofore referred to in this opinion, also given by the trial court, and are in part as follows: “If you find from the evidence that the deceased is petitioner’s father and that deceased had no home but that of Lydia Valencia, and that the deceased and petitioner and petitioner’s mother constituted the family of deceased, and that they resided in one house as a household and family, and that the deceased did receive the petitioner into his said family and otherwise treat said petitioner as if he was a legitimate child, and if you find further that the deceased did at any time publicly acknowledge the petitioner as his own child, then your verdict should be for the petitioner.” This instruction entirely ignored the main point in the case, namely, the clandestine character of the family and the concealment and dissimulation practiced by the decedent in his relations with the child and its mother. Another erroneous instruction was given upon the same subject, as follows: “The court instructs you that a father and his illegitimate child living with and supported by him constitutes a family such as contemplated under section 230 of the Civil Code. Therefore, if you find