(dissenting). I agree that, in an appropriate case, the court should modify the common law rule regarding vicarious admissions by agents. Perhaps the court should adopt in whole or in part Proposed Massachusetts Rule of Evidence 801 (d) (2) (D), under which “A statement is not hearsay if ... the statement is offered against a party and is ... a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.” But, in this case, there was no evidence that the statement in question concerned a matter within the scope of the declarant’s agency or employment. Hence, even if proposed rule 801 (d) (2) (D) represents the law of this Commonwealth, the plaintiff proponent of the evidence has failed to establish that the evidence is other than inadmissible hearsay.
Asked whether he had any role in the investigation of “incidents” at the academy, Dolan testified: “The investigation would generally be conducted by the director, whether it be a sergeant or my assistant. And later they would be submitted to me, whatever their report was.” Dolan also testified that, if it were reported to him that an officer had “flunked two exams,” that would be cause for dismissal, and he would dismiss the officer. He testified, too, that if an officer were injured and he could not continue, he would be dismissed. According to Dolan’s testimony, his role in the dismissal of an officer was “just in regards to signing his dismissal papers.”
Significantly, neither Dolan nor anyone else testified that the defendants had authorized Dolan to assess evidence concerning incidents like the one involved in this case, or to determine how such incidents had occurred or who had been at fault. There was no evidence that Dolan was acting within the scope of his agency in determining that Trooper Woodson had kicked in the door on the plaintiff. Therefore, there was no evidence that Dolan’s statement “concem[ed] a matter within the scope of his agency or employment.”1
*426If Dolan, rather than Woodson, had been holding the door pursuant to his employment, Dolan’s out-of-court statement about what had happened would have concerned a matter within the scope of his agency or employment. Perhaps, too, if it had been Dolan’s job to investigate incidents such as the one leading to the plaintiff’s injury, and to arrive at conclusions concerning what had happened and who was responsible, Dolan’s statement would have been within the principles expressed in proposed rule 801 (d) (2) (D). However, the record is bereft of any such evidence.
The court cites no case, and I am aware of none, in which a court has held that the out-of-court statement of an employee concerning how an injury occurred is admissible against his employer simply because the declarant’s employment requires him to receive reports of investigation. On the contrary, it has been held that the notes of an agent who had conducted an internal investigation of possible employee misconduct, which notes summarized reports the agent had received from some employees about the conduct of other employees, do not qualify as statements of an agent “concerning a matter within the scope of his agency or employment.” Litton Syss., Inc. v. American Tel. & Tel. Co., 700 F.2d 785, 816 (2d Cir. 1983), cert, denied, 464 U.S. 1073 (1984). For all that appears in the present case, Dolan’s out-of-court statement, like the notes in Litton Syss., Inc., id., was no more than a recitation of what he had been told by Trooper Woodson’s fellow employees or by others, or his conclusion therefrom. The proffered evidence was pure hearsay regardless of whether this court adopts the principles expressed in proposed rule 801 (d) (2) (D).
I would affirm the judgment.
There was not even evidence that Dolan’s statement was based on investigative reports.