(dissenting in part):
I dissent from so much of Part I of the majority opinion as rules that the statement of Faulds to the fire marshall should have been admitted in evidence. While it is currently the vogue, as the majority states, to admit “declarations against interest”1 when “a witness is unavailable to testify,” this evidentiary rule is of very recent origin. The traditional “declaration against interest” exception to the hearsay rule was limited to declarations made by a deceased person against a pecuniary or proprietary interest, spontaneously made, and relating to a present, immediate interest not contingent upon the happening of some remote event. This was the absolute rule in England and generally throughout the United States into the 1930’s. See J. McKelvey, on Evidence §§ 209-215 (4th Ed. 1932). Since that time, however, courts have dissipated the effectiveness of this time-proven guarantee of the trustworthiness of this type of evidence by dissolving on an ad hoc basis the individual elements necessary to bring testimony within the exception. The resulting olio, as judges stroll along unpredictable paths, has created uncertainty and even confusion at both bar and bench, adding unfortunate delay to the disposition of many cases. Preciseness in the law of evidence has lost its equilibrium because of the classic conflict between competing claims of continuity and change in the law. Some courts cling, in panic, to the past while others view all tradition and the doctrine of stare decisis with aggressive hostility. Without evaluating the merits of either philosophy but appraising court rulings in this field of the law of evidence, it is obvious that the gravamen of the exercise results in a long series of inconsistent, conflicting and confusing opinions predicated not upon fixed principles, but upon a subjective determination of what is best in a particular case. The evil in the system is, of course, that as heresies have a habit of turning into newly minted dogma, the individual subjective ruling becomes “case law” and is the springboard from which the next ad hoc ruling springs, like Prometheus unbound, into what we, most inaccurately, define as the law of evidence. Each such legal exercise reduces the stability of principles of evidence to a whiter shade of pale and reveals the void of logic at the core of such procedure. To the conscientious trial judge attempting to conduct his court as a court of law governed by established and recognizable *249rules, each random abandonment of previously recognized governing precepts operates like the ring of Gyges — it bestows the blessing of invisibility upon standards regulating admissibility of evidence. In the meanwhile, however, the judicial migraine is compounded as judges redouble their energies (while forgetting the objective of certainty in the law) to distort and misshape established rules in order to reach a result in a particular case which is harmonious with their view of the proper direction of society. From the everbuilding disarray of directionless discourse these rulings constitute “derelict[s] on the waters of the law,” 2 created basically by courts which find accuracy in procedure an uninteresting quality.
Without further indulging in logoma-chy, I repeat the age old axiom that “bad cases make bad law.” Here we have a “bad case” with the traditional legal result. The majority, then, admit the statement of an off-duty laborer, made completely outside the scope of his employment and concerning conduct completely unrelated to the nature, scope, purpose or bounds of that employment, concerning an occurrence when he, after an all night drinking orgy, was a trespasser upon the employer’s premises, outside the hours (and apparently the days) of his employment. The employee has disappeared. He is consequently unavailable for cross examination, and the factors that normally go into the determination of a witness’ credibility are completely withheld from the trier of facts. I cannot subscribe to the majority action which puts a label of admissible evidence upon such a statement on the ludicrous conclusion that this laborer’s employment constituted such a pecuniary or financial interest as to guarantee the accuracy of this statement.
The tragic result of my colleagues’ ruling is a gross enlargement of the part at the expense of the whole.
. I point out that the authorities relied upon by the majority rendered certain statements admissible either because they were made “within the scope of employment,” Martin v. Savage Truck Line, Inc., 121 F.Supp. 417 (D.D.C.1954) ; Koninklijke Luchtvaart Maatschappij N. V. KLM Royal Dutch Airlines Holland v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775 (1961) or because they were excited utterances, Wabisky v. D.C. Transit System, Inc., 114 U.S.App.D.C. 22, 309 F.2d 317 (1962). Further, the unique factual situation existing in Pennsylvania R.R. Co. v. Rochinski, 81 U.S.App.D.C. 320, 158 F.2d 325 (1946) sharply and accurately illustrates the very evil which I herein condemn. The court, obviously convinced that the witness, J. C. Solomon, had given perjured testimony, but unable to pass upon the credibility of that witness stretched and contorted the “against his interest” principle beyond all existing or recognized bounds. Lacking confidence (and I daresay belief) in this pronouncement they sought to justify their ruling on grounds of materiality and credibility, while furtively suggesting, but not “considering,” that spontaneous utterance might be an independent ground for admission. I question that had the court had firm assurance in the correctness of its “against interest” ruling it would not have found it necessary to argumentatively fortify its holding by suggesting three alternative justifications.
. Lambert v. California, 355 U.S. 225, 232, 78 S.Ct. 240, 245, 2 L.Ed.2d 228 (1957) (dissenting opinion of Justice Frankfurter) .