In this workmen’s compensation suit the jury found that appellee was totally and permanently disabled as the result of an injury sustained on his job on March 6, 1972. The question to be determined on appeal is-the propriety of the trial court’s action when it refused to allow appellant to have one of its witnesses testify at the trial because such witness had not been included in the list of witnesses which the court had compelled aрpellant to give appellee at the time the voir dire examination of the jury panel was conducted. We have concluded that such action of the trial court was an abuse of its discretion which rеquires a reversal of this cause.
Appellee’s counsel did not use the pretrial discovery procedures allowed by the Rules of Civil Procedure to discover the names of appellant’s witnesses in advаnce of the trial, but at the beginning of the voir dire examination of the jury panel he orally requested appellant’s counsel to name the witnesses he intended to use in the trial. Appellant’s counsel at first refusеd the request but was then ordered by the trial court to supply such information. In response to the court’s order, appellant’s counsel named several persons who would be used as witnesses. He added that there would also be a witness from Boise Cascade (appellee’s employer) and that he believed his name was McCommas. Well into the trial, during the presentation of its defense, appellant offered thе witness Marvin Higginbotham rather than McCommas. Both were employees of Boise Cascade. Upon appellee’s objection on the ground that he did not know that Mr. Higginbotham would be a witness and thus did not question the jury panel on voir dire about possible relationships with that witness, the trial court refused to allow Mr. Higginbotham to testify. In explaining his use of Mr. Higginbotham instead of Mr. McCommas, appellant’s counsel stated that his intention was to use thе supervisor at Boise Cascade who supervised the appellee when he returned to work after the injury. He further stated that a representative of his client had informed him that the supervisor was Mc-Commas, but that the representative had' just recently discovered and informed appellant’s counsel (after voir dire) that the supervisor was Higginbotham rather than McCommas. Upon questioning by the trial court, appellant’s сounsel admitted that he knew at the time the voir dire was conducted that Mr. Higginbotham was a potential witness, but insisted that he only intended to call appellee’s supervisor, whom he thought at the time was Mr. Mc-Commas, but who was actually Mr. Hig-ginbotham. These assertions were not challenged by appellee when made at the trial or in the brief.
Until recently in our practice the right to discover the identity of a party’s witnesses, mentioned only in Rule 186a, was largely ineffective because of exceptions contained in the rule. 46 Tex.Law Rev. 214, Discovery of The Names of Witnesses and Potential Parties; Ex parte Ladon,
Wе have been unable to find a Texas case on this exact point, but cases in the federal system are abundant, and as the Texas pre-trial discovery rules are derived from the federal rules, there seems to be no reason why a different interpretation should prevail in our practice. See Wright v. Wright,
Therefore, if the trial court has the power to compel a party to reveal the witnesses he expects to use in the trial and restrict such party to the witnesses named, it appears that such power must he found in its common law power оr in its broad trial discretion, and not in these rules. We do riot find it necessary to decide this narrow question, however, because of the circumstances existing in the case at bar.
It is not only customary in many courts, but it is a pаrt of sound advocacy for counsel to question prospective jurors as to their relationships and acquaintances with persons who might be witnesses at the trial, so that peremptory challenges may bе intelligently made. Gonzales v. Texas Employers’ Insurance Ass’n.,
It remains to be determined if the action of the trial court was prejudicial, or only harmless, error. The central issue in this cаse was whether or not the appellee was totally and permanently disabled. In its bill of exceptions, the appellant elicited testimony from Higginbotham that he knew and observed appellee’s work bеfore the injury, as well as when appellee returned to work after the injury, under his supervision. He testified that after the injury and the return to work the appellee was heavier, was healthier looking, was jolly, and “ . . . all around, the best forklift operator that ever cranked one up . ” He testified that appellee told him after going back to work that “he had never felt better in his life.” He also testified about appellee’s alleged drinking problem. The evidence about the drinking problem was cumulative óf that given by the witness Thedford, but the other testimony of Higginbotham to the effect that the appellee .looked better, heavier, and healthier than before the injury, and was a superior worker, and the admission by ap-pellee that he never felt better in his life, were not testified to by any other witness. Appellant’s doctor had previously testified that in his opinion the appellee was not disabled when he returned to work, but that testimony cannot be said to be cumulative of the testimony of Higginbotham, especially those portions about the quality of appellee’s work and the admission’ that he never felt better. As the question of whether appellee was totally and permanently disabled was the main issue in the case, and the jury found that he was totally and permanently disabled, we believe it is obvious that the exclusion of the witness Higginbotham cannot reasonably be said to have been harmless error under the provisions of Rule 434 Vernon’s Anno. Tex.R. Civ.P.
For the reasons stated, the judgment of the trial court is reversed and the cause is remanded for a new trial.