Employers Mut. Liability Ins. Co. of Wis. v. Butler

• Decision Date: 07 May 1974
• Docket Number: No. 8215,8215
• Citation: 511 S.W.2d 323
• Parties: EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. Ocie V. BUTLER, Appellee.
• Court: Texas Court of Appeals

Page 323

511 S.W.2d 323

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. Ocie V. BUTLER, Appellee.

No. 8215.

Court of Civil Appeals of Texas,

Texarkana.

May 7, 1974.

Rehearing Denied May 21, 1974.

Victor F. Hlavinka, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for Waldrop & Hlavinka, Texarkana, for appellant.

Sherman Kusin, Harkness, Friedman & Kusin, Texarkana, for appellee.

CORNELIUS, Justice.

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 appellant 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 requires 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 advance 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 refused 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 the 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 the 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 McCommas, 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 counsel 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. McCommas, but who was actually Mr. Higginbotham. 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, 160 Tex. 7, 325 S.W.2d 121, (1959); Ex parte Hanlon, 406 S.W.2d 204 (Tex.Sup.1966). Recent amendments to that and other rules now clearly permit, with certain limitations the discovery of 'persons, including experts, having knowledge of relevant facts.' See Rules 167, 168, 170, 186a and 215a. There is a recognized distinction, however, between 'persons having knowledge of relevant facts' and 'witnesses who will be called (to testify) at the trial.' Griffin v. Memphis Sales & Mfg. Co., 38 F.R.D. p. 54 (D.C.Miss., 1965); Magelssen v. Operative Plasterers' & Cement Masons' International Ass'n., 32 F.R.D. 464 (D.C.Mo.1963); Frankel v. Sussex Poultry Co., 6 Terry 264, 71 A.2d 754 (1950). According to the great weight of authority, pre-trial rules such as ours which permit the discovery of 'persons having knowledge of relevant facts' (fact witnesses), do not authorize compelling a party to reveal the witnesses he expects to call at the trial (persons by whom he expects to prove his cause of action). Anno. 19 A.L.R.3d 1114; 2A Barron & Holtzoff, Federal Practice & Procedure, Sec. 766, and cases there cited; Bell v. Swift & Company, 283 F.2d 407 (CA 5th 1960); Wirtz v. Continental Finance & Loan Co., 326 F.2d 561 (CA 5th 1964); State ex rel. Gray v. Jensen, 395 S.W.2d 143 (Mo.Sup.1965); Atlantic Northern Airlines, Inc., v. Schwimmer, 12 N.J. 293, 96 A.2d 652 (1953); Muir v. Anderson, 14 N.J.Super. 231, 81 A.2d 512 (1951); Poulson v. Gamble, 197 Pa.Super. 300, 178 A.2d 839 (1962); United Ben Life Ins. Co. v. .Schott, 296 Ky. 789, 177 S.W.2d 581 (1943); Frankel v. Sussex Poultry Co., supra. Various reasons have been advanced in the cases for this rule. It has been suggested that the forced revelation of the witnesses counsel expects to use at the trial would violate the 'work product' exemption recognized by almost all discovery rules, because counsel's decision in this respect is actually a part of his trial strategy. McNamara v. Erschen, 8 F.R.D. 427 (D.C.Del.1948), citing the authority of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Frankel v. Sussex Poultry Co., supra. It has also been mentioned that a contrary interpretation would be difficult to equitably enforce, as so many unpredictable and uncontrollable circumstances dictate the use or non-use of a witness at the trial which do not affect the identity of 'persons having knowledge of relevant facts.' Fidelis Fisheries, Ltd. v. Thorden, 12 F.R.D. 179 (D.C.N.Y.1952); Kyker v. Malone Freight Lines, Inc., 17 F.R.D. 393 (D.C.Tenn.1955); Central Hide & Rendering Co. v. B-M-K Corp., 19 F.R.D. 294 (D.C.Del.1956).

We 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, 154 Tex. 138, 274 S.W.2d 670 (1955). Even if the Texas discovery rules authorize the forced revelation of the witnesses by whom a party expects to prove his case, as distinguished from persons having knowledge of relevant facts, the coercive measures given by those rules to the trial court to enforce the discovery, such as The exclusion of items of proof or the dismissal of the action, are applicable only to pre-trial proceedings, and they are not applicable to orders made in the course of the actual trial. American Central Insurance Co. v. Texhoma Stores, Inc., 401 S.W.2d 593 (Tex.Sup.1966).

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 be found in its common law power or in its broad trial discretion, and not in these...