concurring in part and dissenting in part. I agree with the majority that the judgment of nonsuit in favor of Dempsey must be reversed. I dissent from their conclusion that the judgment of nonsuit as to Simons should be sustained.
We have this situation: An agent or servant (Dempsey), driving a motor vehicle registered in the name of his principal (Simons), has a collision with another motorist, plaintiff’s testate (Branch), who is killed. Plaintiff, alleging the actionable negligence of Dempsey while acting in the course and scope of his employment by Simons, sues both him and Simons for Branch’s wrongful death. G.S. 20-71.1 (b) makes the registration of the vehicle in Simons’ name 'prima facie evidence that he owned the motor vehicle and that at the time in question it was being operated by a person for whose conduct the owner was legally responsible. It does not make out a prima facie case of negligence on the part of either the driver or the owner of the vehicle. Hartley v. Smith, 239 N.C. 170, 79 S.E. 2d 767. See Howard v. Sasso, 253 N.C. 185, 116 S.E. 2d 341; Whiteside v. McCarson, 250 N.C. 673, 110 S.E. 2d 295.
Declarations made by Dempsey to the investigating officer after they had left the scene of the collision constitute the only evidence of Dempsey’s actionable negligence. These declarations were not a part of the res gestae. Clearly they were admissible against Dempsey, who made them, Morgan v. Bell Bakeries, Inc., 246 N.C. 429, 98 S.E. 2d 464, and, along with the other evidence, required the court to submit the case to the jury as to him. Did those declarations also take to the jury the case as to Dempsey’s principal, Simons? The majority answer this question with an emphatic “No” and then nonsuit the case against him because there is no evidence, competent against Simons, to prove Dempsey’s negligence. This rationale impels a discussion of this evidence question even though plaintiff failed to object to the exclusion of Dempsey’s statement as against Simons.
*757The answer to the problem presented must be found in the law of agency, and it depends upon whether Dempsey made the statements within the scope of his authority as agent of Simons. At the outset, we must distinguish between extrajudicial declarations of an agent which tend to establish his agency and those of a proven or admitted agent which tend to establish his negligence. As against an alleged principal, the former are clearly incompetent. “The existence of the agency cannot be proved by the agent’s statements out of court; it must be established aliunde, by the agent’s testimony or otherwise, before his admissions will be received.” Stansbury, N. C. Evidence § 169 (2d Ed. 1963); Motor Lines v. Brotherhood and Dixie Lines v. Brotherhood, 260 N.C. 315, 132 S.E. 2d 697; Sealey v. Insurance Co., 253 N.C. 774, 117 S.E. 2d 744.
For the purpose of passing on the motion of nonsuit, Dempsey’s agency and activity in the course of his employment by Simons are established by G.S. 20-71.1. Were not his words with reference to that activity also within the scope of his employment?
“He who sets another person to do an act in his stead as agent is chargeable in substantive law by such acts as are done under that authority; so too, properly enough, admissions.made by the agent in the course of exercising that authority have the same testimonial value to discredit the party’s present claim as if stated by the party himself.
“The question therefore turns upon the scope of the authority. This question, frequently enough a difficult one, depends upon the doctrine of Agency applied to the circumstances of the case, and not upon any rule of evidence.” 4 Wigmore, Evidence § 1078 (3d Ed. 1940); accord, Fanelty v. Jewelers, 230 N.C. 694, 55 S.E. 2d 493; Salmon v. Pearce, 223 N.C. 587, 27 S.E. 2d 647; Bank v. Wysong & Miles Co., 177 N.C. 284, 98 S.E. 769. See also McCormick, Evidence § 244 (1954); Stansbury op. cit. supra § 169.
“There is as much confusion in the law with respect to whether admissions by an agent are made within the scope of his employment as there is with respect to the res gestae rule. Of course, express authority to make admissions will rarely be found in a contract of employment.” Grayson v. Williams, 256 F. 2d 61, 66 (10th Cir.)
As Wigmore points out, it is in the field of tortious liability that the scope of an agent’s authority is most difficult to determine.
*758“For example, if A is an agent to drive a locomotive, and a collision ensues, why may not his admissions, after the collision, acknowledging his carelessness, be received against the employer? Are his statements under such circumstances not made in performance of work he was set to do?” Wigmore, op. cit. supra § 1078.
In discussing this problem, he cites Northern Central Coal Co. v. Hughes, 224 Fed. 57 (8th Cir.) and Rankin v. Brockton Public Market, 257 Mass. 6, 153 N.E. 97, both personal injury cases in which the post rem statements of the employee were held incompetent as against the employer. He argues that it is absurd to hold that an employee has the power to make the employer heavily liable, yet that his extrajudicial confession of facts constituting negligence may not be heard in court. “ (T) he pedantic unpracticalness of this rule as now universally administered makes a laughingstock of court methods. . . . Such quibbles bring the law justly into contempt with laymen.” Ibid.
Other commentators have likewise advocated admitting the agent’s statement if the declaration concerned a matter within the scope of the declarant's employment and was made before the termination of the agency or employment. See Am. Law Inst. Model Code of Evidence, Rule 508(a); Morgan, The Rationale of Vicarious Admissions, 42 Harv. L. Rev. 461 (1929); McCormick, op. cit. supra § 244, wherein it is said, “Some of the recent cases, in result if not in theory, support the wider test. Its acceptance by courts generally seems expedient.”
The decisions in this jurisdiction contain many such statements as the following:
“It is the rule with us that what an agent or employee says relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the res gestae, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says af-terwards, and merely narrative of a past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer, (citations omitted.)” Hubbard v. R. R., 203 N.C. 675, 678, 166 S.E. 802, 804; accord, Hughes v. Enterprises, 245 N.C. 131, 95 S.E. 2d 577; Lee v. R. R., 237 N.C. 357, 75 S.E. 2d 143; Howell v. Harris, 220 N.C. 198, 16 S.E. 2d 829; Pangle v. Appalachian Hall, 190 N.C. 833, 131 S.E. 42; Southerland v. R. R., 106 N.C. 100, 11 S.E. 189.
*759Hester v. Motor Lines, 219 N.C. 743, 14 S.E. 2d 794, an action for wrongful death brought against the operator and the corporate owner of a truck and a third party, embodies a factual situation identical with that of the instant case. Over defendant’s objection, a traffic officer was permitted to relate, as a witness for plaintiff, the account of the accident which the driver had given him when he made his investigation. In granting a new trial the Court said,
“It is readily conceded that at the this evidence was offered, it was competent only as against the defendant Helms, (truck driver), and was not competent as against his employer or the other defendant. . . . What an agent or employee says after an event, merely narrative of the past occurrence, is generally regarded as hearsay and is not competent as substantive evidence against the principal or employer.” Id. at 745-46, 14 S.E. 2d at 796.
To the extent the rule laid down in Hester is retained in situations such as we have here, the rule of respondeat superior is eroded. The net result' — -all questions of insurance aside — is likely to be a judgment against an insolvent agent only.
This problem was considered in Anderson v. Office Supplies, 234 N.C. 142, 66 S.E. 2d 677, in an opinion by Barnhill, J. (later C.J.). In Anderson, plaintiff sued both the principal and the admitted agent for injuries inflicted upon him by the latter while he was about his master’s business. Declarations by the agent after the collision established his actionable negligence. They were admitted in evidence only as against the agent. Said Justice Barnhill:
“That the declarations of Dockery made immediately after the collision were admitted only as against him does not affect the result as to the corporate defendant. It is not alleged that the corporate defendant committed any act of negligence. As to it, plaintiff relies on the doctrine of respondeat superior. If, upon consideration of all the evidence, the jury shall find that plaintiff suffered injuries as a proximate result of the negligence of Dockery, then Dockery’s negligence will be imputed to the corporate defendant, thus imposing liability upon it for the injuries sustained.” Id. at 145, 66 S.E. 2d at 680.
The record in Anderson, however, discloses that there was evidence of the agent’s negligence in addition to his extrajudicial statements. The statement quoted above was, therefore, not necessary to the decision in the case, and thus dictum. No authority was cited for it, and no *760effort made to reconcile it with Hester v. Motor Lines, supra. Such a rationale would test the competency of the evidence to establish the agent’s negligence only as against the agent, the active tort-feasor. To admit the evidence now under consideration against the master, it is not necessary to adopt the Barnhill statement if the agent’s declarations were actually made in the scope of his authority.
Grayson v. Williams, supra, involved a factual situation indistinguishable from +he case at bar. Plaintiff’s judgment was challenged by defendant corporation on the ground that the trial court erred in allowing in evidence statements of the agent made several hours after the accident to the investigating officer and others. The Court of Appeals based its affirmance on two grounds; the first is identical with the dictum in Anderson:
“It (the corporate defendant) is charged with no wrongdoing other than the wrongdoing of its agent, Grayson. It is liable only if Grayson, acting within the scope of his employment, was guilty of conduct which would impose liability upon him. Then by operation of law alone and without more, liability is imposed upon it. The liability of Grayson depended upon facts; that of the company depended upon the applicable law when the facts were once established. . . .
“Any facts properly admitted to establish his (agent’s) liability were sufficient, without more, to impose liability upon his employer. . . .
“To hold otherwise would be to make a mockery of the law, because it would mean that the agent had been found guilty of actionable negligence, upon competent evidence, while acting within the scope of his employment, yet his principal had escaped.” (Emphasis added.) 256 F. 2d at 67-68.
For the other ground.of affirmance, the court adopted the reasoning in Martin v. Savage Truck Line, 121 F. Supp. 417 (D.D.C.), yet another case presenting the same factual situation. In Martin, the court rejected the principal’s contention that,
“(W)hile it was a statement against the interest of the person making it, subjecting him, as it did, not only to civil liability, but possibly to criminal sanctions, it cannot be considered a statement against the interest of his principal, because he was the agent of the principal only for the purpose of operating the vehicle, and not for the purpose of making statements concerning its operation.” Id at 419.
*761The court reasoned:
“Drivers of such vehicles are required by law to report accidents resulting in injury in which their motor vehicles are involved. Police authorities have special units for the immediate investigation of the numerous injuries which are of daily occurrence. To say, in these circumstances, that the owner of a motor truck may constitute a person his agent for the purpose of the operation of such truck over public streets and highways, and to say at the same time that such operator is no longer the agent of such owner when an accident occurs, for the purpose of truthfully relating the facts concerning the occurrence to an investigating police officer on the scene shortly thereafter, seems to me to erect an untenable fiction, neither contemplated by the parties nor sanctioned by public policy. It is almost like saying that a statement against interest in the instant case could only have been made had the truck been operated by an officer or the board of directors of the Corporation owning the truck; and trucks are not operated that way. To exclude the statement of the driver of the truck as to the speed of the truck at the time of the collision, which was not only clearly excessive in the circumstances, but even greater than the speed limit permitted on the highway between intersections, would be to deny an agency which I believe inherently exists regardless of whether the statement is made at the moment of the impact, or some minutes later to an investigating officer, or other authorized person.” Ibid.
The above two cases do not represent the weight of authority, 8 Am. Jur. 2d, Automobiles § 968 (1963), yet a number of jurisdictions now recognize their logic and practical justice as the following decisions show:
In Whitaker v. Keogh, 144 Neb. 790, 795-96, 14 N.W. 2d 596, 600, the Supreme Court of Nebraska said:
“We think the evidence was properly receivable as an admission against interest. Whatever an agent or employee does in the lawful exercise of his authority is imputable to the principal and where the acts of an agent or employee will bind the principal, his representations, declarations and admissions respecting the subject matter will also bind him, if made at the same time and constitute a part of the same transaction. Wigmore, Evidence, see. 1078. The question is one of substantive law, the law of agency. It is not a question of res gestae as is often supposed. Wigmore, Evidence, sec. 1797.” (Emphasis added.)
*762In Thornton v. Budge, 74 Idaho 103, 108, 257 P. 2d 238, 242, the Supreme Court of Idaho reached a like result, saying:
“The agency of Henderson having been theretofore established, the statements of Henderson were admissible in evidence. The statements of an agent respecting the subject matter of an action and within the scope of his authority are binding on the principal.”
In Myrick v. Lloyd, 158 Fla. 47, 49-50, 27 So. 2d 615, 616, we find:
“We recognize a conflict of authority on this question; however we have chosen the above as the more practical and liberal rule. . . . When this statement was made the status of principal and agent continued. ... It is also a fact that the statement had reference to matters occurring within the scope of his employment. When so acting the agent was acting for the principal who might have made such an admission himself against his own interest. It is our conclusion that in this case the statement was admissible.”
In Ezzo v. Geremirh, 107 Conn. 670, 142 Atl. 461, it was held that the work of an agent, who had had an accident with employer’s vehicle, was not complete until he had made all reports required by law; that in making these reports he was acting as defendant’s agent and “it was therefore admissible against the defendant as a declaration of his agent made in the course of his agency.” Id. at 681, 142 Atl. at 465.
In K.L.M. Royal Dutch Airlines Holland v. Tuller, 292 F. 2d 775, (D.C. Cir.), a statement relating to his duties made by the airplane radio operator, Oudshorn, in a formal report to the government inspector of accidents, some eight hours after his rescue, was held properly admissible in evidence against the airline in an action for wrongful death of a passenger killed in a crash. The court was not troubled by the hearsay rule:
“Since reliability is the basic test for the admission of any hearsay statement, the interest of the one who utters it and the one to be charged is always important. That this statement is adverse to the interest of KLM is plain. The statement was also adverse to Oudshorn’s personal interests in that it entailed the possible loss of his employment, impairment of his future employment opportunities, possible civil liability for Tuller’s death, and even the possibility of criminal sanctions. We think that *763such a recorded statement meets any reasonable test of reliability.” Id. at 784.
See also Kalamazoo Yellow Cab Company v. Sweet, 363 Mich. 384, 109 N.W. 2d 821.
A number of courts, recognizing the trustworthiness of statements such as those under consideration here, have admitted them by extending the time for spontaneous declarations or relaxing the res gestae exceptions to the hearsay rule. Said the court in Lucchesi v. Reynolds, 125 Wash. 352, 216 Pac. 12 (driver-agent’s statement to police at hospital to which he had taken his victim, held admissible):
“This court, with most other modern courts, has, as we have heretofore said, considerably relaxed the one-time rule that testimony to be admissible as part of the res gestae must be contemporaneous with the happening of the event, and has established the rule . . . that the utterances need not be contemporaneous with and accompany the event, but that they are admissible when they are made under such circumstances ‘as will raise a reasonable presumption that they are the spontaneous utterances of thoughts created by, or springing out of, the transaction itself and so soon thereafter as to exclude the presumption that they are the result of premeditation or design.’ . . . The fact that the statements testified to by the officer had been elicited by his questions cannot militate against their reception. Of course, they were not involuntary exclamations, but they were none the less spontaneous and instinctive.
“It would do little good to refer to cases which have held either one way or the other as to the admissibility of evidence as part of the res gestae, for, as was said by Wigmore, in his work on Evidence . . . ‘To argue from one case to another on this question of “time to devise or contrive” is to trifle with principle, and to cumber the records with unnecessary and unprofitable quibbles.’ ” Id. at 354-55, 216 Pac. at 13.
See also Navajo Freight Lines v. Mahaffy, 174 F. 2d 305 (10th Cir.) (statement at the scene made by truck driver that his brakes jammed, held admissible); Ambrose v. Young, 100 W. Va. 452, 130 S.E. 810 (statement made at the scene by agent-driver to traffic officer within 20 minutes after collision, held admissible); Wabisky v. D. C. Transit System, 309 F. 2d 317 (D.C. Cir.) (testimony of police officer as to what street car operator said to him within 15-20 minutes after he struck a pedestrian, held admissible against his corporate employer).
*764In this jurisdiction a prior judgment against the agent is not res adjudicata as to his actionable negligence in a subsequent suit against the master. Bullock v. Crouch, 243 N.C. 40, 89 S.E. 2d 749. A former judgment in favor of the servant, however, precludes a later suit based on the same cause of action against the master whose liability, if any, is purely derivative. Taylor v. Hatchery, Inc., 251 N.C. 689, 111 S.E. 2d 864. The master is entitled to his day in court with full opportunity to defend on every issue. Bullard v. Oil Co., 254 N.C. 756, 119 S.E. 2d 910. To hold that evidence competent to establish liability as against the agent is per se also competent against the master would not impinge upon these rules. Such a holding would merely mean that in the subsequent suit against the master, the master could subject this evidence to his own cross-examination, offer evidence in contradiction, and perhaps — upon the same evidence — induce his jury to return a verdict exonerating him even though another jury had found his agent liable. As heretofore pointed out, however, it is not necessary in this case to deviate that far from the rule of Hester v. Motor Lines, supra. Here, to impose liability upon the master, it is only necessary to recognize that the agent’s post rem statements were actually made within the scope of his authority. Where such authority exists, the agent’s statement is no less hearsay, but the hearsay exclusion rule is inapplicable because, under the substantive law of agency, the agent’s statement is considered “as if” made by the principal himself; and therefore, admissible as an admission against interest. Kalamazoo Yellow Cab Co. v. Sweet, supra. Even, however, if these statements were considered only as admissions against the interest of the agent, they would be no less reliable. Perhaps it will be suggested that employees, knowing that plaintiffs prefer to seek the deeper pocket of the employer, may be inclined to confess fault where none exists, or where it is doubtful, in order to help an injured plaintiff or to have the employer share the responsibility. This argument contravenes human nature. No motorist likes to admit that his negligence caused an accident. Ordinarily a person will absolve himself from blame in any situation where it is possible for him to do so. The employee who has been involved in a collision resulting in property damage, personal injury, or death, knows that, in.addition to the possible loss of his job, he may face both civil and criminal liability. Although a principal may well have to share his agent’s civil liability, he rarely has any criminal responsibility for the agent’s motor vehicle accident. That agents customarily misrepresent the facts by deliberately making false statements which place the blame for the accident upon themselves, for the purpose of imposing liability upon their principals — especially *765when such statements are made to investigating officers of the law — strains credulity and presupposes the untrustworthiness of agents and servants as a class.
On the theory that post rem statements of an agent may be introduced in evidence against the principal for the purpose of showing his knowledge of the transaction, this Court has sanctioned the admission of a statement by a defendant’s shop foreman, “some time after the wreck,” that a certain type of brake had given trouble. Jones v. Chevrolet Co., 217 N.C. 693, 9 S.E. 2d 395. Accord, Dressel v. Parr Cement Co., 80 Cal. App. 536, 181 P. 2d 962. Certainly this was a narrative of a past occurrence. The agent had no duty to make the statement; he was neither expressly nor impliedly authorized to discuss his employer’s business. Nor was it a statement against his interest, since he himself had no potential liability whatever in the matter. Thus, in that situation, even the safeguard of personal liability of the declarant, present where the servant is the active tort-feasor, was lacking. Yet the court had no hesitancy in admitting the statement as evidence of notice of the existence of facts which created liability.
In the instant case, I conclude that Dempsey’s employment did not end at the time he collided with Branch. The collision imposed additional obligations upon him. He had a duty to remain at the scene, to render aid to Branch, and then and there to disclose certain information to the nearest peace officer, Branch being dead or unconscious. G.S. 20-166. He remained in charge of Simons’ truck and was responsible for its removal from the highway.
In view of the ever-increasing number of highway accidents, every owner of a motor vehicle who entrusts its operation to an agent or servant is bound to contemplate the possibility that it may be involved in a collision. Surely an agent’s authority to operate the vehicle includes both the authority and the obligation — if he speaks at all — to give to those entitled to the information, including the investigating officer, a true account of the manner in which the wreck occurred. A statement made to an officer, who is subject to cross-examination if he testifies as to it, is not analogous to the accident reports which are required •— and specifically excluded from evidence • — by statute. When the driver makes such a statement to an officer, he is not indulging in casual conversation or idle chatter outside the scope of his authority. If the collision is one which must be reported, G.S. 20-166.1 also requires an investigation of it by either the State Highway Patrol, the Sheriff’s office, the city, or rural police.
*766In his dissenting opinion in Marshall v. Thomason, 241 S.C. 84, 95, 127 S.E. 2d 177, 182, Lewis, J., arguing for the rule for which this dissent contends, said:
“There can be no doubt that the driver had the power to make his employer liable by the manner in which he operated the vehicle. The truck was placed ip the sole charge of the driver to operate. It is unrealistic, to say the least, to hold that the driver was the agent of the employer for every purpose in connection with the operation of the vehicle, except to truthfully relate the manner in which he operated it.”
In my view, the authority of an agent who has had a collision in his principal’s motor vehicle is not arbitrarily terminated when the vehicle comes to rest after the accident and the dust from the impact settles, nor does it cease at the end of some brief period of time allotted for spontaneous utterances or to res gestae intervals. Such allotments of time are usually proportional only to the chancellor’s foot. To hold, as do the majority, that the collision spends the force of G.S. 20-71.1, and that it has no further effect “after it (the vehicle) stops” is, in cases such as this, to retreat to the days of Carter v. Motor Lines, 227 N.C. 193, 41 S.E. 2d 586. If the evidence should disclose that the driver of a vehicle was not, in fact, its owner’s agent, the owner would be entitled to a peremptory instruction in his favor on the issue of agency, Travis v. Duckworth, 237 N.C. 471, 75 S.E. 2d 309. See Taylor v. Parks, 254 N.C. 266, 118 S.E. 2d 779. If the agency of the driver is eliminated, so is the owner’s liability.
In passing upon the motion for nonsuit, I would hold that Dempsey, when he gave the investigating officer his version of how the collision occurred, was acting within the scope of his authority as the agent of Simons. My vote, therefore, is to reverse the judgment of nonsuit as to both defendants.