
    Barlow v. Waples et al.
    
      Alan Kahn and Richter, Lord & Farage, for plaintiff.
    
      Charles K. Peters and Swartz, Campbell & Henry, for defendants.
    November 13, 1952.
   Flood, J.,

In this negligence cáse, brought by husband and wife as.plaintiffs, both sides have filed petitions for discovery by oral depositions under Pa. R. C. P. 4007.

Original defendant’s petition seeks discovery as to the owner of the. automobile in which plaintiffs were riding, and whether the husband, when driving, was his wife’s servant or agent. Plaintiffs do not oppose defendant’s petition, and an appropriate order will be entered.

Plaintiffs’ petition requests the right to take the oral depositions of defendant “in order to prove a prima facie claim and in order to ascertain the nature of the defense that the defendant intends to set up and the basis of the defendant’s third party complaint.” At the argument counsel made it clear that plaintiffs wished to ask defendant about the happening of the collision so that we treat the petition as though it had been so framed. It must be denied. Plaintiffs ask in substance for an advance statement of defendant’s version of the occurrence at which all the parties were present. This is beyond our power to order in view of the limitation in Pa. R. C. P. 4011, since plaintiffs, being present, must be taken to know the facts at least in the absence of an averment to the contrary.

There is a very considerable body of professional opinion that such a preview of a party’s testimony, as provided for by the Federal Rules of Civil Procedure, is a very desirable thing. We agree with this view. See 28 U. S. C. 174, rule 26, commentary 3. But the view was rejected by those who drafted and promulgated our Pennsylvania Rules of Civil Procedure relating to discovery. See “Discovery under the Proposed New Rules” by Judge Kenworthey, chairman of the Procedural Rules Committee, 20 Pa. Bar Assn. Quar. 17 (1948). Discovery in Pennsylvania under the current rules does not mean that the parties may procure a script for the trial.

Defendant’s petition is granted. Plaintiffs’ petition is denied.  