On Motion for Rehearing.
HOLMAN, Commissioner.Plaintiff has filed a motion in which he prays that we modify the ruling in our opinion requiring that the judgment be reversed outright, and that the cause be remanded for a new trial in the “furtherance of justice.” In support of this motion he states that there is evidence in the record (which can be amplified upon a new trial) that as regards the pen in question the relationship between the Stockyards Company and Producers was not, in fact, that of landlord and tenant. He frankly concedes that in. his petition the allegation was made that said defendant “leased various of its pens to various commission companies and concerns, including plaintiff’s employer,” and that this allegation was admitted by defendants. It is further stated that when this allegation was made plaintiff was proceeding on the theory that because said defendant was made a public utility by the Packers and Stockyards Act it would make no difference as to the technical relationship existing between Producers and the Stockyards Company. He points out that the instant case is the first one in which this court has construed the Packers and Stockyards Act in respect to the duties imposed upon stockyard companies in furnishing reasonable services to shippers and market agencies and the legal effect of the negligent performance of these duties upon claims such as the plaintiff’s.
We are convinced from an examination of the record that the allegation concerning *547the leasing of the pens was made by plaintiff without any realization that it would establish a complete defense to his claim. The issue upon which we reversed the judgment was not pleaded in the answer of said defendant nor (as far as appears from the record) was it called to the attention of the trial court prior to the filing of the motion for new trial. Hence it appears that there was no real contest in the trial as to the relationship between Producers and the Stockyards Company.
The arrangement between this defendant and Producers was oral. In the event the evidence raised an issue of fact as to the relationship created by this agreement, that fact issue should be submitted to the jury under proper instructions. Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947. In his verified motion plaintiff has stated alleged facts in the nature of newly discovered evidence. This we must disregard. However, there is sufficient evidence in the record before us to have authorized a submission of an issue to the jury as to whether there was, in fact, a landlord-tenant relationship. We recognized this at the time our original opinion was prepared, but such was disregarded because of the aforesaid allegation in plaintiff’s petition.
There is evidence to indicate that the Stockyards Company allots to a commission company such pens as it appears to need and that, as compensation for such use, the commission firm will collect from the shipper a charge per head for the stock placed in the pens and transmit it to the defendant. A like arrangement is followed in regard to feed, all of which is required to be purchased from the Stockyards Company. We also refer to the testimony of Jeremiah Gal-vin, a yard man for Producers, as follows: “Q. Do you know who actually leased or rented those pens when they were allotted to them by the stock yards company? A. Well, as far as I am concerned or as far as I know, I never knew the pens were leased or rented to a firm because anybody could come into that alley and yard cattle any time they wanted to, if the pens were empty. I didn’t know they were ever leased.” As we have indicated, we think (disregarding the admission in the pleadings) that the evidence would justify a submission to the jury of the issue as to whether Producers was a tenant or whether defendant remained in control of the pens and permitted Producers to use them in consideration for which Producers collected yardage from the shipper and transmitted it to defendant.
We now reach the important question as to whether we should remand the case so that plaintiff may amend his petition in such manner as will permit a determination of the aforementioned issue upon another trial. No exact rule has been formulated which will govern this decision. The question must be determined according to the facts and circumstances in the particular case under consideration.
This court has frequently approved the statement of Judge Bennick in Smith v. Terminal R. Ass’n of St. Louis, Mo.App., 160 S.W.2d 476, 479, that “The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate. the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.” See East v. McMenamy, Mo.Sup., 266 S.W.2d 728; Stone v. Farmington Aviation Corp., 363 Mo. 803, 253 S.W.2d 810; Cudney v. Midcontinent Airlines, 363 Mo. 922, 254 S.W.2d 662; White v. Wabash R. Co., 240 Mo.App. 344, 207 S.W.2d 505; O’Neal v. Mavrakos Candy Co., Mo.Sup., 263 S.W.2d 430.
However, the rule has its restrictions. For example, we have held that where a *548plaintiff abandoned his assignments of primary negligence and requested a humanitarian submission only, and thus secured a strategic advantage in avoiding the defense of contributory negligence, the case will not be remanded if, on appeal, it is determined that he failed to make a submissible humanitarian case. Smith v. St. Louis Public Service Co., Mo.Sup., 259 S.W.2d 692.
In the instant case plaintiff sought no strategic advantage in making the allegation. It was a misadventure resulting either from a mistaken idea of the facts or a misunderstanding of the applicability of an important rule of law. We have concluded that a prudent exercise of judicial discretion requires that this cause be reversed and remanded.
Since the case will likely be retried we should now consider two assignments in the appellant’s original brief relating to the exclusion of evidence.
The record shows (although not disclosed to the jury) that Travelers Insurance Company, as Producer’s insurer, paid medical expenses in the sum of $3,-328.25 and workmen’s compensation benefits to plaintiff in the sum of $1,293.75. Thus, under Section 287.150, RSMo 1949, V.A.M.S., the Travelers was subrogated to any recovery by plaintiff against defendants, to the extent of the sum of $4,622 paid by it. The interest of this insurance company in the successful prosecution of plaintiff’s alleged cause of action against defendants is therefore apparent.
During the period of his hospitalization plaintiff was treated extensively by Dr. Walton Ingham who performed a series of operations. The results of many of the medical and surgical efforts made in behalf of plaintiff were discouraging if not unfortunate. Dr. Ingham was paid $764 by Travelers Insurance Company for his services. At the trial, Dr. Ingham testified in detail as to the treatment administered to plaintiff, the severe pain suffered by him and his resulting disability. Defendants, for the purpose of showing bias and prejudice on the part of Dr. Ingham and impeaching his testimony, made an extended offer of proof (out of the hearing of the jury) which is summarized in their briefs as follows: “Defendants offered in evidence five reports from Dr. Ingham to Travelers Insurance Company, dated November 9, 1949, December 1, 1949, December 19, 1949, February 2, 1950, and April 26, 1950, wherein statements appeared which conflicted with his testimony at the trial. Defendants also offered to prove that he was paid by Travelers Insurance Company and employed by that company; that when the Travelers Insurance Company was defending the compensation case Dr. Ingham was prepared to testify that the disability of Holland Houfburg did not exceed 25% disability in the left leg and that Houfburg was at the time free from pain; that Dr. Ingham and his associate have performed other services for Travelers Insurance Company for which they have received substantial compensation and that Dr. Ingham knew that if his testimony was favorable to Houfburg, his employer, Travelers Insurance Company, would recover all that it had paid.” The court substantially rejected the offer since it was ruled that no evidence would be admitted and no use could be made of the exhibits which would disclose to the jury the name of the Travelers Ins'urance Company or that it had employed or paid Dr. Ingham or had any interest in the case.
We are convinced that the court erred in excluding this evidence. It may be conceded that the fact of payment by an insurer of workmen’s compensation benefits and the consequent pro tanto subrogation of the insurer is ordinarily irrelevant in a suit of this nature and should be excluded. Pritt v. Terminal R. Ass’n of St. Louis, Mo.Sup., 251 S.W.2d 622. However, this rule does not apply where it becomes necessary to make such a disclosure in order that the jury may properly evaluate the testimony of a witness. The interest or bias of a witness and his relation to or feelings toward the parties are never irrelevant matters. Any litigant should be freely accorded the right to cross-examine an adverse witness and the court should not unduly *549restrain or interfere with the exercise of that right. It is elementary that evidence that is relevant and material for one purpose cannot be excluded solely because it might be inadmissible for some other purpose. To exclude the evidence offered by defendants would be creating an exception to the universal rule that the pecuniary interest of a witness, or his bias or prejudice, can always be shown, subject only to such limitations upon the extent of the inquiry as may be imposed by the trial judge in his sound discretion. Under the circumstances indicated the jury was entitled to know of any prior inconsistent statements made by the witness, the relationship between the witness and the Travelers Insurance Company and that said insurer had a substantial interest in any judgment plaintiff might obtain. Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 89; Sprinkle v. Davis, 4 Cir., 111 F.2d 925, 128 A.L.R. 1101; Snyder v. Wagner Electric Mfg. Co., 284 Mo. 285, 223 S.W. 911; Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.2d 114; State ex rel. Tramill v. Shain, 349 Mo. 82, 161 S.W.2d 974; Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W.2d 846, 60 A.L.R. 448.
Defendants offered in evidence the “Report of Injury” which was apparently filed by Producers with the Division of Workmen’s Compensation. It appeared that this was offered primarily because it recited that the injury occurred when “a steer fell in the water trough, tipping the water trough over on him [plaintiff] and pinning his foot between the water trough and the hay manger.” Plaintiff objected for the reason that the report was hearsay and not binding upon him. The objection was sustained.
It appears that Producers paid plaintiff his salary for two months following his injury ($400) and that in October, 1950, plaintiff verbally agreed with Producers that it would be repaid out of any recovery he might obtain from the defendants and this agreement was confirmed in a letter written by plaintiff’s attorneys in 1953. It is this possible interest of Producers in the ultimate judgment that is relied upon by defendants as the basis for the admissibility of this report as an admission against interest. In considering this question it should be promptly noted that this was not offered to impeach any witness and therefore our discussion regarding the other excluded evidence would have no application here.
We think the court ruled properly in excluding this report. We find nothing in the record that would make this report binding on the plaintiff. No authority is cited in the brief which would indicate that it would be admissible for any purpose, under the circumstances shown in this case. It should be obvious that the court could not admit in evidence a declaration that might be damaging to plaintiff simply because it may have been made by a creditor whom plaintiff had agreed to pay if he collected a judgment in the cause.
For the reasons heretofore indicated, the cause is reversed and remanded.
VAN OSDOL and COIL, CC., concur.
PER CURIAM.
The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.
All concur.