author: WELBORN, Commissioner.

text:
    WESTMINSTER GERONTOLOGY FOUNDATION, INC., Appellant, v. STATE TAX COMMISSION, Respondent. JOHN CALVIN MANOR, INC., Appellant, v. STATE TAX COMMISSION, Respondent.
    Nos. 58413, 58414.
    Supreme Court of Missouri, Division No. 1.
    April 14, 1975.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 12, 1975.

      Charles L. Bacon, Shook, Hardy & Bacon, Kansas City, Eugene T. Hackler and Robert C. Londerholm, Hackler, Londer-holm, Speer, Vader & Austin, Olathe, Kan., for appellants.
    Stanley Christopher, Jackson County Counselor, Leland Shurin, Special County Counselor, Kansas City, for respondent.
   WELBORN, Commissioner.

Consolidated appeals in proceedings for review of denial by State Tax Commission of exemption from taxation of property devoted to housing and care of older persons. Circuit court affirmed decision of Commission. Taxpayers appeal.

Westminster Gerontology Foundation, Inc., was organized under the Missouri Not For Profit Corporation Law in 1964. It was formed by the Northwest Missouri Presbytery of the Presbyterian Church as an agency to assist in meeting the needs of the aging. The members of the Presbytery are the members of Westminster.

The first project undertaken by Westminster was the construction and operation of John Calvin Manor, located in Lee’s Summit, Missouri. A separate not-for-profit corporation, John Calvin Manor, Inc., was formed to take title to the property, on which residential units were constructed under § 202 of the Federal Housing Act, which makes available a 3% 50-year loan to an acceptable sponsor to provide low-cost housing for low-income elderly. The Presbyterian Church contributed $25,000 to help start the project. $40,000 was paid for the land and $975,681 for construction of the building which provides 100 residential units. The building was built in 1969. Residents must be at least 62 years old. Income limits for residents in John Calvin Manor are: $4,500 for a single elderly person; $5,400 combined income for two elderly persons; and $6,600 for two unrelated elderly persons sharing an apartment.

Taxes on this property based upon the assessment by Jackson County for the year 1970 were the subject of a recent decision by this court in the case of John Calvin Manor, Inc. v. Aylward et al., 517 S.W.2d 59, decided December 16, 1974. That case involved the reduction of a $225,500 assessed valuation to $500 because of lack of proper notice of the increase. In 1971, the property was again assessed at $225,500. The taxpayers made a claim of exemption before the Jackson County Board of Equalization, which denied the claim. On appeal to the State Tax Commission, that body, after a hearing, affirmed .the denial of relief. The Jackson County Circuit Court affirmed the ruling of the Commission. That judgment is the subject of the appeal by John Calvin Manor, Inc. in Cause No. 58,414.

A second project of the Westminster Foundation involves the Vista Del Rio apartment building, located in Kansas City. That building is a 20-story building containing 239 residence units of varying sizes. It was built in 1966 by the Kansas City Education Association to provide housing for retired teachers. It was financed by a $4,310,000 loan under § 231 of the Federal Housing Act. The Kansas City Education Association operation was not successful and in 1968 an agreement was entered into by which Westminster took over the project. Westminster caused a Missouri not-for-profit corporation, Vista Del Rio, Inc., to be formed for operation of the project. The minimum age for residents at Vista Del Rio is 65 years. Residents of Vista Del Rio pay an entrance fee, ranging between $8,480 to $19,393, depending upon the size and location of the apartment provided, plus a monthly service charge ranging between $134 and $234 per month. The residents occupy their apartments under a life care contract, which provides for a lifetime occupancy in the home, various stipulated services, medical-related assistance and participation in various activities and programs of the house.

In 1970, the property was assessed for tax purposes at $500. In 1971, the assessment increased to $800,000. Westminster sought exemption of the property. The Jackson County Board of Equalization denied the exemption. The State Tax Commission affirmed such denial. The Jackson County Circuit Court affirmed the order of the Commission. Appeal from that judgment is the subject of Cause No. 58,413.

In both instances, the taxpayer claimed relief on the grounds that the property was used for religious and purely charitable purposes within the meaning of § 6, Art. X, Const. of Mo., V.A.M.S., and § 137.100, RSMo 1969, V.A.M.S. The tax commission denied the claims on both grounds. The appeals here are premised on the claim that the property is “used exclusively * * * for purposes purely charitable,” within the meaning of the constitutional and statutory provisions.

The question of exemption from taxation of property of nonprofit corporations providing residential facilities and accompanying services for older persons has been before the courts frequently in recent years. This court considered the question in the cases of Defenders’ Townhouse, Inc. v. Kansas City, 441 S.W.2d 365 (Mo.1969), and Paraclete Manor of Kansas City v. State Tax Commission, 447 S.W.2d 311 (Mo.1969). The tax commission relied largely upon Defenders’ Townhouse in denying the claimed exemptions in these cases.

Turning first to Vista Del Rio, appellant would distinguish that operation from those involved in Defenders’ Townhouse and Paraclete Manor on the grounds that the facilities there involved “were essentially mere housing for the elderly, with little else provided in the overall program for health care and health maintenance.” Vista Del Rio, appellant asserts, involves “a modern home for the aged operating under a life care concept” with “a heavy religious emphasis maintained throughout the operation.”

Among the findings of the tax commission was: “Vista is committed to care for its people the remainder of their lives.” Appellant points out the emphasis on medical care and health maintenance which the Vista program provides. An eight-bed infirmary is located in the building. Specialized medical care in the infirmary is provided for in the occupancy agreement for up to 10 days each year at no extra charge. In actual operation, no charge has been made persons requiring more than 10 days infirmary care in a year.

Vista Del Rio has two registered nurses, five licensed practical nurses and five nurses’ aides, working various shifts. A registered nurse resides at the facility and is on call at all times. The nursing staff serves all residents of the facility. They assist patients in the infirmary and also in the apartments when they are ill or physically handicapped. Medication is distributed to infirmary patients and to residents of apartments who are unable to follow directions for medication. Practical nurses check residents in their apartments who are ill with minor problems. The registered nurses observe and evaluate the health care of the residents; make daily reports to the administrator and weekly reports to a staff physician who makes regular weekly visits during which he normally sees between 15 and 25 residents per visit. The physician also examines patients in the infirmary.

The facility provides two meals per day for the residents. One is a basic meal, designed to provide essential nutritional needs, which all residents who are physically able are required to take in the dining room. The cost of the meals is included in the regular monthly charge. Residents requiring special diets are provided such diets.

Operation of Vista Del Rio includes various social activities for residents, including movies, card parties, fellowship gatherings and social gatherings. Shopping tours are provided, as well as tours to points of interest within and beyond the city.

The Executive Director of Westminster is a minister with 27 years’ experience as a parish minister. He serves as Chaplain for the residents. Regular religious services are conducted in the home by area ministers and transportation is provided to area churches of the resident’s choice. Admission to the home is not related to religious preference. In 1971, the residents represented 13 different religious denominations.

Vista .Del Rio is not a nursing home. A physical examination is required for all applicants for residence. Admission is limited to persons in reasonably good health who are able to look after themselves in their own apartments. Residents who become unable to care for themselves by reason of infirmities are cared for in their apartments. When the need for nursing home care arises, persons are transferred to nursing homes not operated by Vista. Vista has borne the cost of such cases, although its occupancy agreement does not require it to do so.

Occupants assign their Medicare and private hospitalization insurance to Vista. Vista does provide outside hospital care at no extra charge.

There would appear to be little room for argument that a facility such as Vista does fulfill an important social need. A combination of circumstances has caused attention to be focused on the needs of the elderly. There can be no doubt that providing them with comfortable housing in pleasant surroundings and providing them with counseling, a program of social activities and health facilities and care is beneficial not only to the persons for whom such services are provided, but also to society in general.

However, for purposes of exemption from taxation, attention must be directed not only to the objects of an organization seeking exemption, but also to the means by which such objects are to be accomplished, particularly from an economic point of view.

Some reference has previously been made to the mode of financing Vista’s operations — the entrance fees and monthly service charges. There is no dispute that the Vista operation is a not-for-profit enterprise. It appears that the entrance fees are retained by Westminster and the monthly service income goes to Vista Del Rio, Inc. Tax returns of Westminster show receipt of $1,420,866.40 from such sources in 1969 and $583,432.18 in 1970. Interest income for the two years amounted to approximately $22,000. For the year ended February 28, 1971, Vista Del Rio, Inc. showed a gross income of $905,901, including $436,133 rents, $95,976 from dining room, $354,352 from grants and endowments and $3,552 “gifts and miscellaneous.” The grants and endowments came from Westminster from the entrance fees it had received. Vista Del Rio, Inc. showed a net operating loss of $135,027 for the February, 1971 fiscal year. The operation of Vista Del Rio is designed to liquidate the indebtedness on the building from the entrance fees and service charges.

The Executive Director and Controller are the only salaried employees of Westminster. They render services both for Vista Del Rio and John Calvin Manor.

Vista Del Rio has no regular program for the admission of persons unable to pay the entrance fees or the monthly charges. Each situation is met on an “individual basis.” If a person without means to pay both the entrance fee and monthly charges should apply for admission, and if the home could “provide the means of taking care of that person,” it would do so, judging the application upon its individual merits. At the time of the hearing before the Commission there had been, in some 21 instances, a reduction of the endowment fee or monthly service charge, resulting in a $39,157 reduction in entrance fees and a projected $2,306.40 annual reduction in the monthly service charges. All persons in Vista Del Rio were paying something toward their care.

The financial aspects of the operation of Vista Del Rio are what the tax commission relied upon in denying exemption from taxation. The commission in effect concluded that a self-liquidating operation, such as Vista Del Rio is designed to be, in which the beneficiaries of the operation pay both the capital outlay and operating expenses, cannot qualify as a “purely charitable” operation under the Missouri constitutional and statutory provisions, as applied in the Defenders’ Townhouse and Paraclete Manor cases.

Neither Defenders’ Townhouse nor Paraclete Manor stands for the proposition that a not-for-profit operation to provide housing for the elderly loses its charitable nature because residents are charged for the facilities they receive. Missouri has long since abandoned the idea that charity can exist only for the indigent. Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826, 829-830[4, 5] (1945); Y. M. C. A. v. Sestric, 362 Mo. 551, 242 S.W.2d 497 (banc 1951). However, the cases relied upon by the tax commission do point up the problems that exist when the beneficiaries of the charity are the sole providers of the financial means for the claimed charitable operation. This feature of the Vista Del Rio operation, which it had in common with the Defenders’ Townhouse and Paraclete Manor, is in contrast with the situation which has been presented in other jurisdictions in cases which appellant points to as having sustained charitable exemptions for homes for the aged. Thus, in Bozeman Deaconess Foundation v. Ford, 151 Mont. 143, 439 P.2d 915 (1968), payments from residents would not pay the mortgage on the facility. “Charitable donations will be required to make up the difference.” 439 P.2d 916. In Fredericka Home for the Aged v. San Diego County, 35 Cal.2d 789, 221 P.2d 68 (1950), the land and buildings, along with a $200,000 trust fund, had been donated. Income from residents provided 65% of the cost of operation, the remainder coming from the endowment fund. In State Board of Tax Commissioners v. Methodist Home for the Aged, 143 Ind.App. 419, 241 N.E.2d 84 (1968), the home was constructed on a 40-acre tract received as a gift and one half of the cost of construction was furnished by Methodist churches. In South Iowa Methodist Homes, Inc. v. Board of Review, 173 N.W.2d 526 (Iowa 1970), the original building had been purchased with church funds and financing of additions was by way of donations from the Methodist Conference, individual churches and individuals, as well as by some gifts. In Glass v. Oklahoma Methodist Home for the Aged, Inc., 502 P.2d 1268 (Okl.1972), “operation of the Methodist Manor is subsidized by the Oklahoma Conference of The Methodist Church.” 502 P.2d 1270. In In re Tax Appeals of United Presbyterian Homes, 428 Pa. 145, 236 A.2d 776 (1968), the Home was established by Hun-tingdon Presbytery from gifts and contributions made by its members and friends. “A fund-raising campaign raised in excess of $340,000.” 236 A.2d 777. This distinction and several of the cases here cited by appellant were noted in Defenders’ Townhouse. 441 S.W.2d 372.

It should also be noted here that in three of the jurisdictions from which cases are cited by appellant in support of its proposition that the majority of cases in other jurisdictions support tax exemption in operations such as here involved, statutes expressly authorizing such exemption were present: Milwaukee Protestant Home for the Aged v. City of Milwaukee, 41 Wis.2d 284, 164 N.W.2d 289 (1969); Bozeman Deaconess Foundation v. Ford, supra; City of Winter Park v. Presbyterian Homes for Synod, 242 So.2d 733 (Fla.App.1970). In the last cited case, the statute was the basis for a decision that an operation involving payment of a founder’s fee and monthly rental charge did not prevent exemption of the home as a not-for-profit venture. An earlier decision, prior to the statute, by a Florida Court of Appeals in Haines v. St. Petersburg Methodist Home, Inc., 173 So.2d 176 (1965), had relied heavily upon the fact that the founder’s fee and monthly rental charge had “substantially recompensed” the home’s expenditures (173 So.2d 185) in providing for its residents. See also Presbyterian Homes of Synod of Florida, Inc. v. City of Bradenton, 190 So.2d 771 (Fla.1966), in which the court held nonexempt an operation involving founder’s fees and monthly rentals in which operating and mortgage payment deficits were made up by donations from persons and churches within the synod.

Among the cases which have emphasized the use of payments from the residents to defray the entire cost of the project in denying exemption to retirement residences are Friendsview Manor v. State Tax Commission, 247 Or. 94, 420 P.2d 77 (1966), affirmed on rehearing, 427 P.2d 417 (1967), cited in Defenders’ Townhouse; County of Douglas v. OEA Senior Citizens, Inc., 172 Neb. 696, 111 N.W.2d 719 (1961), referred to in Defenders’ Townhouse, but not cited by name; Lutheran Home, Inc. v. Board of County Commissioners, 211 Kan. 270, 505 P.2d 1118 (1973); United Presbyterian Ass’n v. Board of County Commissioners, 167 Colo. 485, 448 P.2d 967 (1968); Methodist Old Peoples Home v. Korzen, 39 Ill.2d 149, 233 N.E.2d 537 (1968); Madonna Towers v. Commissioner of Taxation, 283 Minn. 111, 167 N.W.2d 712 (1969); Presbyterian Homes v. Division of Tax Appeals, 55 N.J. 275, 261 A.2d 143 (1970). Admittedly, those cases are more nearly like Defenders’ Townhouse and Paraclete Manor, insofar as the nature of the services provided residents is concerned, being primarily concerned with housing. With the exception of the Nebraska and Kansas cases, a recognized religious group was the sponsoring agency in each of the cases.

In connection with appellant’s distinction of this case from Defenders’ Townhouse and Paraclete Manor on the basis of the overall program for health care and health services here provided, another Nebraska case is of interest. County of Douglas v. OEA Senior Citizens, Inc., supra, involved a project sponsored by the Omaha Education Association, primarily to provide low-cost housing for retired teachers. In denying tax exemption, the court pointed out that the project, although a not-for-profit one, contemplated that each resident should pay his share of the capital and operating expense. The exemption of the same property was before the Nebraska Supreme Court in OEA Senior Citizens, Inc. v. County of Douglas, 186 Neb. 593, 185 N.W.2d 464 (1971). In the later case, one of the major developments since the earlier case, had been the establishment of a health care center in 12 units of the building. The center was under the direction of a registered nurse. It provided hospital-type nursing care for residents, but seriously ill persons were hospitalized elsewhere. Services were also rendered by center staff in the residential units, including giving of shots, baths and assisting residents to the dining area. There was no physician on the staff and all medical services rendered residents other than “nursing care” were rendered by the patient’s own physician. Instead of including the cost of such services in the overall monthly charge, residents were charged for the services actually rendered.

In holding that the addition of the Center did not alter the tax status of the property, the court stated (185 N.W.2d 468-469[5]):

“The addition of Center and the expansion of the health facilities did nothing to change either the dominant use or purpose of Manor, and with the exception of Center, we are dealing with the same essential facts we had before us in 1961 when we held that Manor was taxable. It is neither the incidental use of the property nor the character of the owner which controls. Rather, it is the primary and the dominant use of the property which is controlling in determining whether the property is exempt from taxation. That primary and dominant purpose herein was to furnish housing to a selected group at cost in an environment that would be conducive to a healthful and happy old age.”

A similar conclusion is reached in this case. Vista Del Rio is primarily a place of residence for elderly citizens. The objective to provide for them there in pleasant surroundings and to meet their social, psychological and physical needs is indeed laudable. However, the financial means for such provision is furnished by the residents. The evidence clearly shows that Vista Del Rio is primarily for the benefit of the elderly able to pay. At the time of the hearing, some 2% of the total founder’s fees had been waived. Rental waivers amounted to less than ½ of 1% of the annual rental income. The medical assistance offered the residents undoubtedly adds to the attractiveness of Vista Del Rio. However, it is in no sense offered to them as charity and they pay for it. None of the residents of Vista Del Rio appeared before the Tax Commission. However, it is difficult to imagine that they consider themselves beneficiaries of a charitable organization.

Concern for the burden of the property tax upon the elderly citizens of this state led the General Assembly to enact a proposed constitutional amendment which was accepted by the voters in 1972 and now appears as Section 6(a) of Article X, Constitution of Missouri. The General Assembly has enacted implementing legislation, designed to provide relief to renters, as well as property owners, over 65 years of age. Sections 135.010-135.030, RSMo 1973 Supp., V.A.M.S. The relief here sought, which would accrue to the benefit of the Vista Del Rio residents, might well provide them a greater relief than is afforded to elderly persons generally under the most recent policy declaration in this area.

Turning to John Calvin Manor, the element of physical care, provided at Vista Del Rio, is lacking. Appellant’s emphasis on that project is that it is a low rental housing facility under churchv sponsorship and it contends that as such the property is used for purposes purely charitable within the constitutional and statutory tax exemption provisions. Appellant relies heavily upon the decision in Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489 (1949). That case involved housing facilities constructed and operated by the St. Louis Housing Authority for the benefit of low-income families who previously resided in substandard accommodations. “The housing projects produce insufficient income to pay the cost of operation but the difference between the cost of operation and income from rents is made up by contributions from the Federal Government.” 217 S.W.2d 491. The court found that the housing projects were designed to relieve slum conditions. Pointing out that the rental income fell “far short of meeting operating expense,” the court said: “Nothing could be more public in value or more beneficial to the community as a whole than the clearance and reconstruction of those slum areas wherein men, women and little children are crowded into hovels of such character as to wholly lack the material things and environmental values productive of good citizenship, good morals and well being.” 217 S.W.2d 493. The court held the property of the Housing Authority to be exclusively used for purposes purely charitable.

John Calvin Manor did not involve a slum clearance project. Appellant emphasizes that the motivation and impetus to undertake the project came from a religious quarter and that religious services are conducted there and that there is a strong religious emphasis in the entire operation. Obviously, however, the property is not used exclusively for religious purposes, although a religious motive may be of some significance in determining whether or not the use is for purposes purely charitable. Y. W. C. A. v. Baumann, 344 Mo. 898, 130 S.W.2d 499 (banc 1939).

In this case, however, the motive which prompted John Calvin Manor cannot alter the fact that it is basically rental housing for elderly people, with income limitations, provided by a not-for-profit corporation. All residents pay rent and there is no evidence that any program exists to take care of residents who become unable to pay. Housing for the elderly, as for the public generally, is becoming a matter of increasing concern. That an organization such as John Calvin Manor, Inc., with the support of Westminster, is willing to provide it on a nonprofit basis is commendable, but that does not mean that the activity thereby becomes charitable, absent some public purpose such as the slum clearance program involved in Bader. John Calvin Manor is the beneficiary of a low interest mortgage and of certain contributed services from Westminster, such as the service of its Director, accounting services, payment of bills, volume purchasing and other administrative services. (The operating statement of John Calvin Manor, Inc. for the 1970 year shows payment of a management fee of $17,295.00. To whom this is paid does not otherwise appear.) Again, these facts do not alter the primary use of the property. It is basically housing provided at cost to the tenants and the tax commission properly found the right of exemption ruled by Defenders’ Townhouse and Paraclete Manor.

Judgments affirmed.

HIGGINS, C., concurs.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: HOLMAN, Judge. SEILER, Judge

license: Public Domain

text:
    Donald L. BEISHIR and Eddie D. Umfress, Movants-Appellants, v. STATE of Missouri, Respondent.
    No. 57828.
    Supreme Court of Missouri, En Banc.
    April 14, 1975.
    Rehearing Denied May 12, 1975.

      Thomas P. Rose, Jefferson City, for mov-ants-appellants.
    John C. Danforth, Atty. Gen., David Ro-bards, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Judge.

In December, 1966, movants (hereinafter referred to as defendants) were convicted of second degree murder and their punishment was fixed by the court (under the provisions of Section 556.280 V.A.M.S.) at life imprisonment. Upon appeal we affirmed. State v. Umfress, 433 S.W.2d 284 (Mo.1968). Thereafter the defendants filed a motion to vacate the judgment under Rule 27.26 V.A.M.R. The trial court held an evidentiary hearing and made findings adverse to defendants and overruled the motion. Defendants have duly appealed from that order and judgment. We affirm.

The principal questions presented on this appeal relate to an alleged interference by the prosecuting attorney in compliance with a subpoena duces tecum by Dr. Leroy Rook, a prison psychologist.

At the trial of defendants the two principal witnesses for the state were Ray Warren and Roger Turnbough who were inmates of the penitentiary. Defendants, also inmates, were charged with killing another inmate, James Hawkes. Apparently defendants’ attorney desired to make an effort to impeach Warran by presenting expert evidence that he would not tell the truth. To that end a subpoena duces tec-um was served on Dr. Rook ordering that he produce “all records of care and treatment of Ray Warren.”

Defendant Beishir testified that on one day of the trial he was conveyed to the courthouse in the same automobile as Dr. Rook; that upon arrival Dr. Rook, who was carrying a thick file, went into the office of the prosecuting attorney; that when Dr. Rook testified he only had two pieces of paper. An offer of proof was made that in August, 1967, this witness had a conversation with Dr. Rook who told him that before testifying he had gone into the office of the prosecuting attorney; that the prosecutor had taken some of the records out of the files and that he was concerned about the incident. An objection was sustained to that offer. This witness also testified that he knew that following the September, 19S4, riots which occurred at the penitentiary, two inmates who testified for the state in subsequent prosecutions were released by commutation of the Governor.

Dr. Rook died prior to the 27.26 hearing and hence his testimony was not available.

Defendants offered the deposition of Granville Collins, an attorney and friend of Dr. Rook. Both of these men lived in Fulton, Missouri. Collins (whose testimony was admitted subject to objection) stated that Dr. Rook talked with him as a friend shortly after he had testified — “He was perturbed and upset as to whether or not he had an ethical duty to reveal certain information which . . . may have had some influence on the trial of this particular case.” This witness further testified that Dr. Rook indicated that the prosecuting attorney looked at the records “ . . . removed certain documents and would say, ‘This has no bearing on this case,’ and lay it aside; and, ‘This has some bearing on this case,’ . . . that in some of the letters that had been set aside —I do not know whether it was a psychological report, but there was some report there that indicated that the veracity of this particular witness was highly questionable, . . . Mr. Rook then informed me that he was put on the stand to testify; that the defense attorney asked him if he had brought certain records, he stated that he had and he turned the records over to the defense attorney; and at no time was he ever asked to produce, if there were any, other records in his possession or in his knowledge or control concerning this particular witness, Mr. Warren. I simply told Dr. Rook I felt under the circumstances if he felt that strongly about it, it would be my suggestion he contact the defense attorney.”

Byron L. Kinder, the prosecuting attorney, testified that: “Dr. Rook came in my office unsolicited, my recollection is that he had the whole prison file, that which we have had here in evidence today. Now why he was carrying it rather than Harry Lauf [penitentiary records officer] I don’t know. He handed me the file, I went through the file, and my best recollection is that I took from that file serial transcripts on Beishir and Umfress, Ray Eugene Warren’s prison record, State’s Exhibits 1 through S were in the files that I took as they are found in the trial transcript there. I didn’t even discuss with Dr. Rook what he was going to testify to, and when he came here on the stand and started testifying I made appropriate objections and he was very upset with me after it was over. Dr. Rook was a psychologist and a little strange himself, he couldn’t understand why he couldn’t hazard a guess and make opinions. I kept the record rather tight in that regard and he was rather upset with me about it. * * *

“Q You have no recollection whatsoever of whether or not you extracted any documents ?

“A I know that I extracted no documents from any file other than what I testified to. * * *

“Q (by Mr. Rose) Then is it your testimony, Mr. Kinder, that you know that the records that may have been subpoenaed on inmate Ray Warren which were brought to the courthouse by Dr. Rook, you know nothing about the fact that they were brought into the courtroom if that is true?

“A I haven’t the slightest idea what Dr. Rook brought into the courtroom other than the two documents. I know he had Mr. Warren’s total file when he came into my office, but what he brought in that day I don’t know.”

The transcript of the original trial shows that Dr. Rook produced two papers. One was a letter from the Parole Board requesting a psychological evaluation of Ray Warren and the other was his report of such evaluation in response thereto. After some testimony concerning those exhibits the following occurred:

“Q (by Mr. Howe) All right. Dr. Rook, is that all you have in your department in regard — these two — in regard to this man, Ray Warren ?

“A No, it is not.

“Q What else do you have?

MR. KINDER: Wait a minute. Let’s approach the bench.”

Thereafter a colloquy occurred between the Court and counsel concerning the admissibility of evidence of the nature defendants were attempting to offer, at the conclusion of which defendants’ counsel abandoned any further effort in that regard and Dr. Rook was excused as a witness.

It was stipulated that two prisoners who testified for the state in the 1954 riot trials were released by commutation of sentences on January 13, 1956, long before expiration of their sentences; that Warren and Turn-bough were released by commutation in 1968 and 1969, a considerable time before expiration of their sentences.

The trial court made findings as follows: “The court finds after considering all of the competent evidence that the prosecuting attorney did not interfere with the proper compliance of the subpoena duces tecum issued at request of movants by examining and removing portions of the personnel file of witness Warren so that mov-ants were deprived of their right to view and inspect all of the records called for in the subpoena.

“The court further finds that the prosecuting attorney did not intentionally withhold or suppress any contents of the personnel file of inmate Warren specified in the subpoena duces tecum issued on behalf of movants knowing that the contents of the file would have weakened the state’s case and aided the movants in their defense at the trial.”

The first contention of defendants is that the court erred in making the findings above quoted. In our consideration of this point it should be stated that we do not believe the testimony of Granville Collins was admissible but it apparently was considered by the trial court and will also be considered by us ex gratia. We also are mindful that “Appellate review shall be limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j).

It is obvious that when Dr. Rook went into the office of the prosecuting attorney he had more records than the subpoena called for. The evidence indicates that defendants’ attorney was seeking psychological or psychiatric records of Warren. Apparently Mr. Kinder sorted out the records he thought should be produced but there is nothing to indicate that his action precluded Dr. Rook from taking all the records into the courtroom. Furthermore, as heretofore quoted, Dr. Rook in his testimony told counsel for defendants that he had other records. No doubt he would have produced these other records if counsel had pursued that line of questioning but, as stated above, counsel apparently concluded that the evidence was not admissible and abandoned his efforts in that regard.

There is another reason why the action of the prosecuting attorney was not prejudicial to defendants. The records they sought would not have been admissible nor would they have led to admissible evidence. Defendants point to a report to the Parole Board of a psychiatric examination of Warren by Dr. Guhleman. Therein it is stated that Warren’s “frank openness and sincerity of approach is completely misleading.” Assuming that such a statement indicates an opinion that Warren was not truthful it would not have been admissible even if Dr. Guhleman had appeared as a witness. It should be noted that defendants did not object to Warren being used as a witness because of mental incompetency but apparently were seeking to prove by psychiatric opinion that he was not worthy of belief. Expert testimony for this purpose is not permissible.

Defendants also say that some of the records would have shown that Warren feared that someone in the penitentiary would kill him and desired to be confined in maximum security. It is contended that such evidence would have helped defendants because they could argue that he volunteered to testify so that he would be so confined. Assuming that such evidence was admissible the failure to produce those records was not prejudicial because Warren testified in the trial that he had “turned himself in” (for protection).

Defendants have sought to raise a due process question by citing the case of Barbee v. Warden, Maryland Penitentiary, 4th Cir., 331 F.2d 842 (1964) which discusses the duty of the state to disclose exculpatory evidence to the defendant but that case would have no application to the factual situation before us.

As indicated we rule that the findings and conclusions of the trial court were not clearly erroneous.

Defendants contend, as a second ground for 27.26 relief, that the prosecuting attorney allowed Ray Warren and Roger Turnbough to testify at the original trial that they had not been promised special treatment in exchange for their testimony, when the prosecutor had made such promises. The testimony of the prosecutor was that he told the two witnesses he would see they were secure in their persons and not physically harmed, but that he offered nothing more. In the original trial, the witness Warren said he had been promised “only protection.” Defendants maintain the witnesses were promised early release through executive commutation of their sentences. The trial court found against defendants on these claims and again we cannot say the finding was clearly erroneous.

For the foregoing reasons the judgment of the trial court denying relief under Rule 27.26 is affirmed.

DONNELLY, C. J., and MORGAN, HENLEY and FINCH, JJ., concur.

SEILER, J., dissents in separate dissenting opinion filed.

BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, J.

SEILER, Judge

(dissenting).

Beishir and Umfress were convicted of the slaying of one James Hawkes. The crime occurred inside the walls of the Missouri State Penitentiary. The convictions rested on the testimony of two inmates, Ray Warren and Roger Turnbough. Without their testimony the state would not have made a submissible case against either defendant. See State v. Umfress, 433 S.W.2d 284 (Mo. banc 1968), which reports the original trial and appeal.

There were 25 persons who testified in the original trial. Of these, only four (none of whom were eye witnesses) were not convicted felons serving time in the penitentiary. The defendants maintained they were not in any way involved in the killing, that at the time it took place they were in another part of the prison, playing handball. Numerous inmates corroborated this. A prison guard who testified for the state and who was within a few feet of the deceased when he fell did not see either of the defendants anywhere in the vicinity of the crime. As said, the only witnesses who connected defendants with the slaying were Warren and Turn-bough, who testified they were together and saw the stabbing.

I realize the present proceeding is an appeal from a motion to vacate under rule 27.26, that it is not to be used as a second appeal from the original convictions, and that the question of the guilt or innocence of the defendants is not before us, State v. Reese, 481 S.W.2d 497 (Mo. banc 1972). Nevertheless, in this post conviction review and our consideration of whether defendants’ constitutional rights were impaired, we should keep in mind that it was of the most vital importance to the defendants that they be able to discredit the testimony of Warren and Turnbough. This is the objective which defense counsel had in mind when he caused the prison psychologist, Dr. Rook, to be served with a subpoena duces tecum to bring to court the records on the care and treatment of Warren.

The principal opinion disposes of the action of the prosecutor in withholding part of the records on the ground this was not prejudicial, because it is said the records were not admissible, nor would they have led to admissible evidence, pointing out that apparently defense counsel was seeking to prove by psychiatric opinion that Warren was not worthy of relief. The opinion states “Expert testimony for that purpose is not admissible.” I must respectfully point out that this broad exclusion does not take into account the increased acceptance accorded psychiatry in recent years, and there is respectable authority holding to the contrary.

Be that as it may, however, I am unable to agree that this case turns on whether or not expert testimony for such purpose is permissible. While the principal opinion twice makes mention that “apparently” this was the purpose counsel had in mind, no such statement of purpose or offer of proof to that effect by counsel appears in the record. I do not believe that we can limit consideration of defendants’ claim to this assumption. Defense counsel was seeking “all records of the care and treatment of Ray Warren” and he had a right to view them. It is not for us to assume what his tactical judgments would have been with respect to their use. Once the documents were in court and marked as exhibits, he could have used them for additional cross-examination of Warren, he could have offered all or part of the records, he could have called as witnesses the persons who made them. Evidence admissible for one purpose is not excluded because inadmissible for another purpose. Louis Steinbaum Real Estate Co. v. Maltz, 247 S.W.2d 652 (Mo.1952). But none of this was possible without compliance with the subpoena duces tecum (it should be noted the state made no move to quash the subpoena, so any claim which might have been made that it could not be used for discovery was waived). It is because of what the state did in impeding the defense in its efforts that I believe these sentences must be vacated and the cases remanded for a new trial. It seems to me it is no answer to defendants’ claim of interference by the prosecutor with the subpoena duces tecum to say that expert testimony that a given witness is not worthy of belief is inadmissible, as this does not meet the point.

That the prosecutor did edit the file is established conclusively; he admitted at the 27.26 hearing that the records which were produced at the hearing were the same records which Dr. Rook brought to the prosecutor’s office and handed to him the morning of the second day of trial. Among these records, then, were the following, all of which were among those in evidence at the 27.26 hearing:

1. A report of a clinical psychologist, Dr. Clifton W. Wolf, dated March 8, 1958 on Warren. This report related an occasion when Warren cut his wrist, requiring seven sutures to close the self-inflicted wound. Warren’s explanation was that he feared for his life, that someone was going to kill him. Dr. Wolf concluded that Warren had sought confinement to the psychiatric ward as a reprieve from the other inmates. He was in the ward a period of 14 days. Dr. Wolf expressed the opinion Warren was malingering and attempting to show up badly and that he had a psychopathic tendency.

2. An inmate violation report on Warren dated June 10, 1963, stating that Warren was brought to disciplinary court that date claiming that he was too hot to stay in population, was in fear of his life, that the whole population was after him and that he would have to do the rest of his time in safekeeping.

3. The report of Dr. Henry V. Guhle-man, Jr., a psychiatric consultant, of his examination of Warren made September 17, 1963. According to this report Warren told Dr. Guhleman about having been placed in B Basement for his own protection because “other fellows are out to get me”, that the other inmates were organized against him and Warren saw little or no immediate opportunity to return to the general population. Dr. Guhleman’s report states further: “ . . . His rather apparent open frankness and appearing sincerity of approach is . completely misleading. This boy’s appearance also perhaps adds to this general impression which he uses and plays it to the hilt [I]t is almost impossible to believe what this boy says and only his actions speak for themselves . . . he is a person who thrives on trouble ”

But none of these records were brought to the witness stand by Dr. Rook. His testimony in the original trial, which is a part of the record before us, shows that all he brought to the witness stand were two documents — his own report on Warren and the letter from the Parole Board asking him to make the examination of Warren. He did not have with him the report on Warren by Dr. Guhleman, the report by Dr. Wolf, or the inmate violation report.

Defense counsel was entitled to see these reports. They expose Warren’s unreliability, instability, self-serving misrepresentations, attempts to get himself placed in segregation extending over a period of years and his psychotic tendencies, supported by recorded data and medical reports. With these reports in hand defense counsel could have recalled Warren for further cross-examination which could have been highly effective. It was in the discretion of the trial court to have permitted the recalling of Warren for additional cross-examination and upon seeing these reports the court no doubt would have acceded to such request. See State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 697 (1943); State v. Hersh, 296 S.W. 433, 436 (Mo.1927); State v. Roe, 180 S.W. 881, 885 (Mo.1915); State v. Fredericks, 136 Mo. 51, 37 S.W. 832 (1896); State v. Jones, 64 Mo. 391, 397 (1877). Or defense counsel could have called Warren as an unfriendly and hostile witness and examined him by cross-examination without vouching for his credibility, Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858, 867 (1937), especially where defendants had no way to develop the leads suggested by the records other than by further cross-examination of Warren, Mooney v. Terminal R. Ass’n of St. Louis, 352 Mo. 245, 176 S.W.2d 605, 611 (1944). Warren was an inmate of the penitentiary in Jefferson City, where the trial was held. He was the next to last witness for the state on December 27, 1966. Dr. Rook was the first witness the next day, so the state could easily have produced Warren for recall.

The reports contain many leads which experienced defense counsel could have developed in cross-examining Warren to establish a motive for him to lie in this case, particularly with regard to his obsession to be segregated from the general inmate population. The Wolf report relates an occasion when Warren sought refuge in the psychiatric ward as result of an admittedly self-inflicted wrist laceration, saying he was fearful of his life, claiming someone was going to kill him. He was in the psychiatric ward for 14 days. The inmate violation report of June 10, 1963 quotes him as saying he was too hot to stay in population, was in fear of his life, the whole population was after him, that he would have to do the rest of his time in safekeeping. The Guhleman report of September 18, 1963 quotes him as saying he was put in B Basement at his request for his own protection because “other fellows are out to get me”; that the entire penitentiary was organized against him and he saw little or no immediate opportunity to return to the general population. He told Dr. Guhleman about his attempted self-mutilation to get him into the psychiatric ward to protect himself from the others, but then changed his story and said it was for the purpose of escaping from the fifth floor through a tunnel out of the hospital.

Warren had earlier testified that to check yourself in means, “When you are running from someone, you check yourself in and they protect you.” One way for Warren to succeed in “checking in” would be to report to the guards that he saw another inmate stab James Hawkes — to “snitch” on a fellow inmate. It is common knowledge that it is dangerous for an inmate to be a “snitch.” State v. Green, 470 S.W.2d 565 (Mo. banc 1971); Kern v. State, 507 S.W.2d 8 (Mo. banc 1974). In the present case, the prosecutor testified it was “common practice to kill witnesses in the prison if they are going to testify.” In all probability, the only way Warren’s life could be protected would be for him to be kept away from other prisoners. Thus, if defendants could show by cross-examination (or if Warren would not admit the facts then the defendants could lay the groundwork for calling the authors of the reports to contradict and impeach Warren on what he denied) that Warren had on numerous occasions attemped to manufacture a situation where he would be taken out of the general population and placed in segregation or maximum security, then a motive or explanation appears as to why Warren would lie about having seen defendants stab Hawkes. While not exactly the same, the situation is similar in principle to the well established general rule that proof of commission of other offenses is competent to prove the specific crime when it tends to establish motive, intent, or a common scheme or plan, State v. Mitchell, 491 S.W.2d 292, 295 (Mo.1973).

The principal opinion states that inasmuch as Warren testified he had “turned himself in”, the failure to produce the records sought which showed that Warren was actively seeking to be confined in maximum security could not have been prejudicial. It seems to me this premise assumes that all Warren had to do to accomplish his desired segregation was to ask the prison officials for it. Common sense tells us that it takes more than that for the prison officials to agree to special treatment for an inmate. If Warren could convince the prison officials he saw defendants kill the victim and that he would so testify in court, then the officials would know he would have to be segregated to survive. The important fact is not that Warren turned himself in; what is important is what Warren’s motive was for convincing the prison officials he knew something that would put his life in danger. Was it because he was trying to see justice done, or was it because he was using another ruse to get back into segregation?

There is no way anyone can say with certainty what a jury would have concluded had defense counsel been able to cross-examine Warren from the records which were kept from him. At the very least, it is safe to say that counsel could have brought out facts from which the jury could have believed that Warren had a strong motive to make a false accusation against defendants and from which the jury could have entertained serious doubts as to Warren’s truthfulness in general. We cannot expect defendant to do the impossible and prove this would have resulted in an acquittal, but matters affecting the credibility of witnesses are always relevant and material, State v. Summers, 506 S.W.2d 67, 73 (Mo.App.1974), and only the jury can determine what it would do on a different body of evidence, Mesarosh v. United States, 352 U.S. 1, 12, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). It is sufficient if the conduct of the state in keeping the evidence from the defendants thereby deprived them of valuable material. The material would have been helpful in discrediting Warren, developed by skilled counsel as it would have been, and that is sufficient for its absence to have prejudiced defendants’ trial.

In my opinion, the finding of the trial court that the prosecuting attorney did not interfere with the proper compliance of the subpoena duces tecum by examining and removing portions of the Warren file so that defendants were deprived of their right to view and inspect all the records called for by the subpoena is clearly erroneous, and examination of the entire record leaves one with the definite and firm conviction that a grave mistake has been committed. Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). Neither Granville Collins, a member of the bar, nor Dr. Rook, who worked for the state, had any motive to misrepresent or manufacture testimony. When Dr. Rook told Mr. Collins that he had not obeyed the subpoena, as he had not when he did not bring with him to the witness stand the entire file on Ray Warren, he admitted facts which, had they been known to the court in the original trial, could have subjected him to contempt for noncompliance with a subpoena, Sec. 491.180, RSMo 1969, V.A.M.S., and he was in fact making a declaration against his own penal or pecuniary interest, which is one of the exceptions to the hearsay rule, Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (1945); Osborne v. Purdome, 250 S.W.2d 159 (Mo. banc 1952), so there is a strong element of testimonial trustworthiness as to what Dr. Rook told Collins.

The recollection of the prosecutor, who was in a sense defending himself and seeking to preserve his victory in the original trial, was, as he admitted, a “little fuzzy”, the events in question had occurred over five years before. But he was positive Dr. Rook did have the entire file when he came to the prosecutor’s office and the state conceded in its brief that Dr. Rook arrived at the courthouse in possession of the proper records to comply with the subpoena. Something happened. to crucial portions of the file between that time and the time Dr. Rook took the witness stand and in my opinion the overwhelming evidence is contrary to the findings of the trial court on this issue.

The principal opinion agrees that the prosecutor “sorted out the records he thought should be produced”, but concludes that “there is nothing to indicate that this action precluded Dr. Rook from taking all the records into the courtroom.” However, the testimony of the prosecutor was that he “took from that file” Warren’s prison record as well as other documents. This testimony plus Dr. Rook’s testimony that all he had with him on the stand were the two documents earlier referred to can lead only to the conclusion that the prosecutor retained the documents which he “sorted out” and “took.” It is contrary to the evidence to conclude that Dr. Rook regained possession of what was taken from the file.

The principal opinion also points out that Dr. Rook testified he had other records, which it is said he no doubt would have produced on request, but that counsel apparently concluded the evidence was not admissible and abandoned further efforts. It seems to me, however, that we have no solid basis for ascribing such a conclusion to counsel, particularly when one examines the colloquy referred to in the principal opinion. As is set forth therein, defense counsel asked Dr. Rook if “these two”, referring to the two papers which Dr. Rook had produced (his report and the letter from the Parole Board), were all he had in his department in regard to Warren. Dr. Rook said it was not, and then, before he could answer the next question, “What else do you have?”, the prosecutor interrupted and approached the bench. What followed was this:

“[Prosecutor] : I want to object to any testimony being offered in this case as to what is in his file, or what is not in the file. We don’t — I don’t know what this man’s response is going to be, and it may prejudice the jury. The competency of this witness, Mr. Warren, should have been challenged at a proper time, and that is an attempt to do what counsel has not the right to do, at this time.

“And, if he continues with this line of questioning, I’m afraid—

“The Court: What is the purpose of this line of questioning?

“[Defense counsel]: Well, I would ask him if this was the complete report and apparently he has no copies.

“The Court: You have withdrawn it, so, whether or not it’s a complete record or not, is not material. You haven’t offered it. You have withdrawn your offer.

“[Defense counsel] : All right. I think I’ll desist on it.”

Counsel thereupon abandoned further efforts, but I believe it was because he mistakenly concluded Dr. Rook had nothing else at hand — counsel said “apparently he has no copies” — not because he concluded the evidence he had tried to subpoena was inadmissible. It is unthinkable counsel would have abandoned such a gold mine of information on Warren had he any inkling of its existence. The fact that the records disclosed previous efforts by Warren to have himself placed in segregation by contending he was too hot to remain in the general population and that Dr. Wolf and Dr. Guhleman considered Warren a malingerer and a chronic liar would have been of great significance to defense counsel and the prosecutor could not be unaware of this. See Ashley v. Texas, 319 F.2d 80, 85 (5th Cir. 1965). Instead of disclosing that there was more in the file than the two documents which Dr. Rook brought to the stand, the prosecutor kept Dr. Rook from answering by a disarming objection which conveyed the idea that the prosecutor knew no more about what Dr. Rook had than defense counsel.

Had defense counsel any idea that the prosecutor had sorted out the file, then, of course, counsel would have gotten to the missing documents quickly and we would not now, several years later, be trying to ascertain the facts. It is undisputed that the full contents of Dr. Rook’s file and the action of the prosecutor in sorting through and removing documents therefrom were not made known to defense counsel or the court. This nondisclosure, in my opinion, constitutes a basic unfairness amounting to a denial of due process. In a criminal trial the prosecution has a duty of candor toward the defendant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defense counsel does not have to proceed on the suspicion that a witness employed by the state will not honor a subpoena duces tecum and that the prosecution will interfere with its execution as being the natural and expected state of affairs. This is true with respect to impeaching evidence as well. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). It is not the function of the prosecutor to decide what a witness under a subpoena duces tecum should or should not produce or be permitted to take into the courtroom. Missouri’s Code of Professional Responsibility, rule 4, EC7-13 provides: “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict . . . With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused . . .” See also State v. McClain and State v. Brooks, supra, fn. 6.

In hindsight it is easy to say that defense counsel should have insisted on an answer to his question, “What else do you have?”, but as said in Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964), “In gauging the nondisclosure in terms of due process, the focus must be on the essential fairness of the procedure and not on the astuteness of either counsel.” If the prosecutor had permitted Dr. Rook to take to the witness stand everything he had brought with him to the courthouse, then there could have been no unfairness to defendants. But the way it was handled, defendants were unfairly deprived of access to evidence which went to the truthfulness and reliability of the witness Warren on whom the jury might well have based its determination of defendants’ guilt or innocence. I do not believe counsel’s failure to pursue the matter further under the circumstances disposes of defendants’ claim that the state interfered with Dr. Rook’s compliance with the subpoena duces tecum, thereby violating defendants’ constitutional rights to due process in a full and fair trial.

Therefore, I respectfully dissent and would vacate the sentences and judgments of conviction and remand for a new trial as to both defendants.

      . Warren, age 34, at the time of the trial in December 1966, was serving sentences totaling 35 years, on which he had 24 years yet to go. He was released on executive commutation in April 1968. The prosecutor stated that he helped Warren obtain his release, but that it was not premised on any prior promise. Turnbough, who was serving a 5-year sentence, was released in March 1969. Obviously, there was no way the jury could consider these facts which happened later in arriving at their verdict in the Umfress-Beishir trial.

      . The usual method of impeaching the credibility of a witness by proving his bad reputation for truth and veracity in the community could not as a practical matter be used here by the defendants. The witness Warren resided in the penitentiary with other inmates. He did not reside, circulate, and mingle in a community of ordinary, law abiding, upright citizens. No such person was available to testify — only fellow inmates, who themselves were felons and whose credibility would be suspect to begin with.

      . See, e. g., United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950) (memorandum opinion permitting psychiatric testimony for purpose of impeaching the credibility of Whittaker Chambers in light of the importance of his testimony in the government’s case against Alger Hiss, citing Wigmore on Evidence, [3rd ed. 1940] Vol. Ill, Secs. 924a, 932, 935, 997b, 998b and American Law Institute, Model Code of Evidence, Rules 106, 401, 409); “Nowadays there is a distinct and interesting tendency to permit the use of expert witnesses in an effort to prove that the psychiatric makeup of the primary witnesses renders them less than fully credible. Maguire, Evidence—Common Sense and Common Law (1947), p. 74; Sinclair v. Turner, 447 F.2d 1158, 1162 (10th Cir. 1971) (stating the rule that “the fact of . mental abnormality either at the time of observing the facts which he reports in his testimony, or at the time of testifying, may be provable, on cross-examination or by extrinsic evidence, as bearing on credibility”, where defendant attempted to show that a government witness was a psychopathic personality with schizophrenic tendencies); Mosley v. Commonwealth, 420 S.W.2d 679 (Ky.App.1967) (psychiatrist who had cared for the prose-cutrix and sole witness in rape case would be allowed to testify that she was schizophrenic and subject to sexual fantasies; People v. Jones, 42 Cal.2d 219, 266 P.2d 38 (1954) conviction of child abuse reversed because of failure to permit psychiatrist to testify that defendant was not a sexual deviate or sexual psychopath.
      Juviler, Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, 48 Cal.L.Rev. 648 (1960); Curran, Expert Psychiatric Evidence of Personality Traits, 103 U.Pa.L.Rev. 999 (1955). See also Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838 (1966), where it is observed the rules of competency are inadequate to exclude pathological witnesses; “Frequently, and of special import to juries, he [the psychopath] engages in pathological lying.” Psychiatric Evaluation of the Mentally Abnormal Witness, 59 Yale L.J. 1324, 1330.
      For instances where expert testimony that witness was a pathological falsifier was used to impeach credibility, see Miller v. State, 49 Okl.Cr. 133, 295 P. 403 (1930); State v. Wesler, 137 N.J.L. 311, 59 A.2d 834 (1948); People v. Cowles, 246 Mich. 429, 224 N.W. 387 (1929).
      In fact, the orthodox practice of the common law was to admit the witness’ own belief, founded on personal knowledge and observation, as to the trait of character of the individual in question. See Wigmore on Evidence (3rd ed.) Vol. III, Secs. 1980, 1982.

      .The prosecutor’s testimony at the 27.26 hearing was: “. . . Dr. Rook came into my office unsolicited, my recollection is that he had the whole prison file, that which we have had here in evidence today . I went through the file . and my best recollection is that I took from that file . . . Ray Eugene Warren's prison record . . .”

      . Similarly, the Granville Collins deposition states Dr. Rook told Collins as to Warren: “that during the course of the time that he had been an inmate in the Department of Corrections he had been known as the type of inmate who would say anything or do anything in order to curry favor, and that he was highly suspect on anything that he might have to say . . .”

      . The importance of motive evidence was emphasized in United States v. Harris, 462 F.2d 1033 (10th Cir. 1972), where the prosecutor failed to disclose that several charges against his key witness were being dismissed in exchange for his testimony. The court stated at 1035, “Great leeway should be accorded the defense in establishing such a witness’ subjective reasons for testifying The jury should have known of this aspect of the case and fairness requires that the defense be given full opportunity to pursue and argue the matter” (emphasis supplied). For similar holdings, see State v. McClain, 498 S.W.2d 798 (Mo. banc 1973); State v. Brooks, 513 S.W.2d 168 (Mo.App.1973).

      . On the pecuniary interest aspect, the record shows that the defendants instituted a civil rights action for damages against Dr. Rook, based on his failure to bring all the records on Warren with him to the witness stand as ordered by the subpoena.

      . The prosecutor testified that he took from the file state’s exhibits 1-5 which the state had put into evidence the first day of the trial; specifically these were the fingerprint cards on Beishir and Umfress, and their serial records used to establish their status as habitual criminals. Obviously these would not have been in a file pertaining to the “care and treatment of Ray Warren”, thus illustrating the fuzziness of which the prosecutor spoke.

      . When the prosecutor made this objection he knew there was more in the file, but defense counsel did not, nor did the court.

      . However, the prosecutor did know that if Dr. Rook were permitted to answer the question, then what happened to the rest of the file would come out, again something which defense counsel and the court did not know.

      . This objection is not to the point, as defense counsel was attempting to lay the groundwork to impeach Warren’s credibility, not challenge his competency. Defense counsel had earlier stated he was not contending Warren was incompetent to testify.

      .This has reference to counsel’s having earlier offered Dr. Rook’s report in evidence, but then, upon the court’s asking, “For what purpose?”, withdrawing it “at this time” for some further interrogation of Dr. Rook, during which Dr. Rook explained what a psychological evaluation was, what was needed to make one, where the records of psychiatric care would be kept, that if there had been a psychiatric examination a copy of the report should be in Rook’s files, that Dr. Wolf was his predecessor. Then came the questions and the colloquy set forth earlier.


author: SEILER, Judge.

text:
    STATE ex rel. MANCHESTER INSURANCE AND INDEMNITY COMPANY, Relator, v. Honorable Herbert K. MOSS, Judge, Circuit Court of Jefferson County, Respondent.
    No. 58833.
    Supreme Court of Missouri, En Banc.
    May 12, 1975.

      Goldenhersh & Newman, Leo M. Newman, St. Louis, for relator.
    Briney, Welborn & Spain, Joe C. Wel-born, Bloomfield, for respondent.
   SEILER, Judge.

In this original proceeding in prohibition, relator-intervenor seeks to prohibit respondent judge from dismissing its cross claim for indemnity against defendant.

The plaintiffs in the underlying action are insured by the relator for liability and uninsured motorist coverage. On October 31, 1972, plaintiff Mrs. Harris had a collision with a utility pole as a result of the alleged negligence of Nelson Tenney, who had no physical contact with the Harris vehicle. Mrs. Harris, asserting she had been injured by the alleged negligence of Tenney, filed suit against him for damages. The relator was advised of the pen-dency of the suit, and upon learning that the defendant Tenney might be uninsured, filed a motion to intervene, to which plaintiffs consented. Relator also filed a cross claim against defendant, generally alleging that if it be determined that Tenney was negligent and thereby caused Mrs. Harris’ injuries, and that Tenney was uninsured, then relator would be obligated to pay the amount of Tenney’s obligation and should be indemnified by him. Both plaintiff and defendant moved to dismiss the cross claim, which motion was sustained. Relator filed a petition for writ of prohibition in this court and we issued a provisional writ; we now quash said writ.

There is no question but that relator is entitled to intervene in the plaintiff’s case inasmuch as the result could bind relator on the issue of the uninsured defendant’s tort liability and damages, State ex rel. State Farm Mut. Auto. Ins. Co. v. Craig, 364 S.W.2d 343 (Mo.App.1963). Nor is there any question that an uninsured motorist carrier is entitled to be reimbursed from the proceeds of any recovery had by plaintiff against the uninsured motorist, limited to the amount of payment it makes to the insured by reason of the uninsured motorist coverage, Sec. 379.203, subd. 4, RSMo 1969, V.A.M.S. The issue in this case concerns the right of the relator to cross claim for indemnity directly against the defendant.

Indemnity is a right which inures to a person who has discharged a duty which is owed by him, but which, as between himself and another, should have been discharged by the other, so that if the second does not reimburse the first, the second is unjustly enriched to the extent that his liability has been discharged. Restatement, Restitution, Sec. 76; Lee Way Motor Freight v. Yellow Transit Freight Lines, 251 F.2d 97 (10th Cir. 1957); see also Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1 (Mo.1960). The doctrine of indemnity applies only where an identical duty owed by one is discharged by another, American Mutual Liability Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178, 182 (1963). This principle is stated in 42 C.J.S. Indemnity § 3, p. 566, where indemnity is distinguished from subrogation as follows:

“Both doctrines are based on the principle that a benefit has been conferred on defendant at the expense of plaintiff [relator here], but the principle of indemnity is more limited in application than that of subrogation, since not only must a benefit be conferred on defendant by a discharge of his duty or obligation, but the discharge must have occurred under circumstances in which plaintiff was, at the same time, discharging a personal obligation coextensive •with that of defendant.” (emphasis supplied).

It is clear that in the instant case, relator’s duty to the plaintiff is not “coextensive” with the duty owed by defendant. Relator’s duty to pay plaintiff arises from the uninsured motorist coverage in its insurance policy, and payments made pursuant thereto do not in any way constitute the discharge of defendant’s duty to the plaintiff. Relator is only obligated to pay the insured plaintiff to the extent of the policy limits, while the defendant is or may be liable to plaintiff for the full measure of her damages. Although defendant’s alleged negligence may have precipitated the relator’s liability to the insured plaintiff, relator’s payments under the policy would neither discharge defendant’s liability to plaintiff nor unjustly enrich him thereby.

Relator’s citations, State ex rel. Laclede Gas Co. v. Godfrey, 468 S.W.2d 693 (Mo.App.1971) and Listerman v. Day & Night Plumbing and Heating Service, Inc., 384 S.W.2d 111 (Mo.App.1964), are not controlling here. In both cases, the party seeking indemnity would be liable to plaintiff on the same basis as the codefendant from whom indemnity was sought, i. e., liability arose for both from negligence, although the negligence of one might be active or primary while that of the other was only passive or secondary. In this case, however, the only duty owed by relator to the plaintiff arises from its insurance contract; it played no part in the event which caused the injuries, and its payments to the insured are separate and distinct from the obligations owed by an uninsured defendant. Relator is entitled to be reimbursed to the extent of its payments from the proceeds of plaintiff’s recovery from defendant, if any, Sec. 379.203, subd. 4, RSMo 1969, V.A.M.S., but this reimbursement is in the nature of subrogation to the insured’s right of recovery against the uninsured motorist, and may not be brought directly against the uninsured motorist by the insurer, Kroeker v. State Farm Mut. Automobile Ins. Co., 466 S.W.2d 105, 110—11 (Mo.App.1971).

For these reasons, the trial court was not exceeding its jurisdiction in dismissing relator’s cross claim for indemnity, and the provisional writ of prohibition is hereby discharged.

All of the Judges concur.


text:
    Joseph C. HILL, a/k/a Joe Hill, d/b/a Hill Auto Parts, and Virginia M. Hill, his wife, Plaintiffs-Appellants, v. KENNOY, INC., a corporation, a/k/a Kennoy Company, Inc., Defendant-Respondent.
    No. 58846.
    Supreme Court of Missouri, En Banc.
    May 12, 1975.

      Lewis, Rice, Tucker, Allen & Chubb, J. L. Pierson, Mark T. Keaney, St. Louis, for plaintiffs-appellants.
    Albert H. Feldt, Clayton, for defendant-respondent.
   SEILER, Judge.

This is an appeal from a judgment of the circuit court of St. Louis County denying the plaintiffs a private way of necessity under Sec. 228.340, RSMo 1969, V.A.M.S.

Plaintiff Hill operated an auto salvage business. In 1962 he purchased a parcel of land from persons known as the Taylors immediately north of the land owned by defendant Kennoy, Inc. The land purchased did not abut any public road. Prior to August 14, 1970, Hill had leased a portion of defendant’s land by which he had access to Reavis Barracks Road from his property, but this lease expired on August 14, 1970, and was not renewed. Hill testified that when the lease terminated, he was thereby deprived of access to his property from a public road, that he could no longer conduct his business upon the property and was forced to close and take a job driving a truck.

The Hills instituted suit against Kennoy on March 7, 1970, seeking to establish a private road of necessity over the western edge of the Kennoy property pursuant to Sec. 228.340. Much of the testimony at trial centered around the question of whether or not the Hills had alternate ways of access either to Reavis Barracks Road or to another road, Avenue H, lying to the west of the Hills’ property with another parcel belonging to the Taylors in between. Thus, the issue of whether the private road prayed for is in fact a way of strict necessity is central to this case.

On March 29, 1971, judgment was rendered for the defendant Kennoy. Shortly thereafter, the president and managing officer of Kennoy, Anthony F. Grasso, Jr., filed an affidavit in which he related that Kennoy had released a certain parcel of land which it had been leasing for a number of years from the Missouri Pacific Railroad. This parcel was immediately adjacent and parallel to the Kennoy property over which plaintiffs sought their private road, and extended back to the Hills’ property. It was suggested that plaintiffs would now be in a position to negotiate with the railroad for the use of this land for ingress and egress.

After plaintiffs appealed from the order of the trial court denying them relief, Ken-noy filed a motion to dismiss the appeal on the grounds that the Hills were doing business on the property and that the case was moot insofar as they had access from their property to a public road. It appears that the plaintiffs did acquire a lease from the railroad and were using the leased premises as a means of ingress and egress. The terms of the lease are discussed later herein.

The appeal went first to the court of appeals, St. Louis district, which held that since plaintiffs did have present access to their property and were continuing the business thereon, the case was moot and the appeal was dismissed. Upon plaintiffs’ application for transfer to this court, we accepted the case to resolve what appears to be a conflict among earlier decisions relating to the question of present access.

The right to a private road over the land of another exists only by way of necessity, and not convenience, Cox v. Tipton, 18 Mo.App. 450 (1885); Evans v. Mansfield, 364 S.W.2d 548 (Mo.1963). One cannot have a way of necessity because it is more convenient than the way one has, Vossen v. Dautel, 116 Mo. 379, 22 S.W. 734 (1893); 72 C.J.S. Private Roads § 5, pp. 923-4. It has also been said that if the party seeking a private road has no “legally enforceable right” to use an alternative route, he is entitled to a way of necessity, Cox v. Tipton, supra. It was thus stated in Evans v. Mansfield, supra, at 551:

“So long as the plaintiff had a practicable way to and from his land, either private or public, he had not a right, by necessity, to a way over the defendant’s lands . . . [A] way as here meant, is a legal way, to use which one has a legal right, which may be enforced, and which may not be rightfully interfered with.”

This general rule has not been questioned in this state, but a recent case relied on by defendant apparently carves out an exception. In Curtman v. Piezuch, 494 S.W.2d 668 (Mo.App.1973), the court of appeals found that plaintiff had ingress and egress from his property which he was not prevented from using at the time of the trial. The facts indicated that plaintiffs had probably acquired a prescriptive easement over this way, but without the interested parties present, the court of appeals was understandably reluctant so to hold. Instead, they stated, 494 S.W.2d at 672: “But whether or not the Curtmans [plaintiffs] have a legally enforceable right to use the old road is not essential to the determination of this proceeding in its present posture for the reason that they had not been prevented from using the old road at the time of the trial.” While it is true that it is a “good answer to show another way which the party may use,” Vos-sen v. Dautel, supra, there is no authority in Missouri cases for holding that such other way will abrogate plaintiffs’ claim of necessity where it is not a legally enforceable way. The rule was positively stated by this court in Evans v. Mansfield, supra, at 551:

“Defendants contend that because there is another road extending . to plaintiff’s land the new road is not a way of strict necessity. That would be quite true if the old road (1) were a reasonably practical way to and from plaintiff’s land and (2) if plaintiffs had a legally enforceable right to use said road.”

There was no evidence in the Evans case that the plaintiff had been prevented from using the old road, either in the past or at the time of trial. In fact, plaintiff testified that he had never been stopped from using the old road. Nonetheless, this court held that plaintiff was entitled to a way of necessity because he had no legally enforceable right to the use of an alternate way. The fact that plaintiff had present, albeit inconvenient, access to his land at the time of trial was of no effect in the Evans decision, and insofar as Curtman is inconsistent therewith, it must be overruled.

We turn now to the facts of the present case. As already mentioned, defendant suggested at least two alternative routes over the property of other landowners by which plaintiffs could gain access from their property to a public road. Defendant contends further that one of these, the “CBS road” leading to Avenue H, had ripened into a prescriptive easement for plaintiffs’ access by reason of many years use by plaintiffs’ predecessors in title and surrounding landowners. If this were true, then plaintiffs would have a legally enforceable way and would not be entitled to a private road, Evans v. Mansfield, supra. The record, however, does not support such a prescriptive easement. First, we do not know whether in fact Avenue H is itself a public road. Both Mr. Hill and Mr. Grasso claimed to have personal knowledge of the county records, but Hill testified that Avenue H was a private road, and Grasso testified it was public. The records themselves were not in evidence, so even if there is a prescriptive easement on the CBS road, we cannot be sure that the CBS road does in fact provide Hill access to a public road. Secondly, and more importantly, Mr. Grasso’s testimony that the CBS road had been used for over thirty years by others in the area is not clearly applicable to the particular driveway leading off the CBS road and into plaintiffs’ property. This driveway crosses a ditch before it reaches the fenced boundary of the Hills’ property, and an easement with respect to this driveway would have to be established before it could be said that plaintiffs have a legally enforceable way to and from their land. At best it is unclear whether the user described by Mr. Grasso pertained to the CBS road itself, to the driveway, or to both. Furthermore, Mr. Hill testified that a “manager” of the CBS building came to view the road in response to a call by Mr. Hill, and refused to grant permission to Hill to use the road.

Plaintiffs thus have no legally enforceable right to this route or the other one suggested by the defendant. While plaintiffs may have a choice between surrounding landowners against whom they might have proceeded for the establishment of a private road, neither Sec. 228.340 nor the case law indicates that one landowner can defeat a plaintiff’s right to a way of necessity simply by pointing to another against whom plaintiff might have sought relief.

We come now to the issue of the Hills’ present situation. The lease with the railroad which now provides them with access to and from their property was obtained on a basis terminable at will by either party on thirty days notice. As said, the existence of present access neither moots the case nor defeats plaintiffs’ claim for a way of strict necessity unless such access is a legally enforceable right. Plaintiffs strongly urge that a terminable-at-will lease does not constitute a legally enforceable right-of-way to which they are entitled under previous holdings. While the alternate routes which provided access in both Evans and Cox were merely permissive and did not involve leases, these were held to provide no legally enforceable right to ingress or egress, thus entitling the plaintiff to a private road. We think the result must be the same here. The lease being terminable at will, it is not much better than a mere permissive use, and cannot be enforced by the Hills except as to the thirty days notice period.

We note finally that defendant has offered no evidence of hardship or injury should the private road over his property be granted, a consideration which may be taken into account, Welch v. Shipman, 357 Mo. 838, 210 S.W.2d 1008, 1011 (1948). The judgment of the trial court is reversed and the case remanded for the appointment of commissioners to mark out the road and assess damages pursuant to Sec. 228.340.

All of the Judges concur.

      . This other route leads from Avenue H across the Taylors’ property and would extend to the Hills’ parcel but for intervening railroad tracks. The establishment of a railroad crossing at this point would be within the exclusive discretion of the Public Service Commission, Sec. 389.640, RSMo 1969, V.A.M.S. An informal request by the Hills to the railroad brought a denial on the grounds that there were already too many crossings in the area, and another would he unsafe.