concurring:
-1-
Appellant’s first argument is that its liability to appellees is precluded by Rule 17 of its tariff, which at the time of the fire was on file with the Pennsylvania Public Utility Commission. Rule 17 provided:
Liability of Company
(a) The Company shall not in any way or under any circumstances be held responsible to any person or persons for any loss or damage for any deficiency in the *528pressure, volume or supply of water due to any cause whatsoever. The Company will undertake to use reasonable care and diligence in order to prevent and avoid interruptions and fluctuations in the service, but it cannot and does not guarantee that such will not occur.
(b) The Company shall in no event be liable for any damage or inconvenience caused by reason of any break, leak or defect in the Customer’s service pipe or fixtures.
The trial court held Rule 17 void as in violation of Article III, Section 18 of the Pennsylvania Constitution,1 and also, as against public policy. We cannot agree with the first of these two holdings, for under our decision in Behrend v. Bell Telephone Company, 257 Pa.Super. 35, 390 A.2d 233 (1978), Article III, Section 18 applies only to acts of the General Assembly and not to tariffs filed by public utilities. The question remains, however, whether Rule 17 is void as against public policy.
In considering this question, we may start with our decision in Behrend v. Bell Telephone Company, 242 Pa. Super. 47, 363 A.2d 1152 (1976) (“Behrend I"), vacated, 473 Pa. 320, 374 A.2d 536 (1977), reinstated, 257 Pa.Super. 35, 390 A.2d 233 (1978) (“Behrend II"). In Behrend I the Telephone Company’s tariff provided as follows:
The liability of the Telephone Company for damages arising out of failure to comply with a customer’s direction to install, restore or terminate service, or mistakes, omissions, interruptions, delays, or errors or defects in transmission, or failure or defects in the Telephone Company's equipment [facilities] occurring in the course of furnishing service and not caused by the negligence of the customer ... shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such failure, mistake, omission, interruption, delay, or error or *529defect in transmission, or failure or defect in the Telephone Company’s equipment [facilities] occurs.
The Telephone Company, except as provided herein, shall not be liable for damage claimed on account of errors in or omission from its directories nor for the result of the publication of such errors in the directory ____ Claim for damages on account of interruptions to service due to errors in or omissions of directory listings will be limited to an amount equivalent to the proportionate charge for that part of the customer’s service which is impaired, but not to exceed one-half the local service charges for the service items affected for the period from the date of issuance of the directory in which the mistake occurred to the date of issuance of a new directory containing the proper listing.
242 Pa.Super. at 69, 363 A.2d at 1163 (footnote omitted).
In upholding the limitation of liability, we recognized the authority of the PUC to evaluate the reasonableness of tariffs filed with it, both as to rates and as to limitations of liability. Since the tariff was properly filed, we felt compelled to enforce its provisions, including the limitation of liability.
This case, however, is not governed by our holding and reasoning in Behrend I. For while Behrend I involved what was clearly a limitation of liability, this case involves what is just as clearly an exculpatory clause. (Appellant argues otherwise, but the argument is without merit; it is hard to imagine broader exculpatory language: “shall not in any way or under any circumstances be held responsible to any person or persons for any loss or damage for any deficiency in the pressure, volume or supply of water due to any cause whatsoever.”) To determine the reasonableness of a limitation of liability requires striking a balance of “benefits and burdens,” see Behrend I, 242 Pa.Super. at 73, 363 A.2d at 1165, and to do that requires the PUC’s expertise in ratemaking: the benefit of low rates is balanced against the burden of limited recovery. How*530ever, the determination of the validity of an exculpatory clause, which absolves the utility from all liability, is not an inquiry peculiarly within the PUC’s expertise, but, rather, one that courts are familiar with. Accordingly, while we continue to recognize the authority of the PUC to determine the reasonableness of rates, which determination includes the determination of the reasonableness of a limitation of liability, we believe that it was the trial court’s responsibility initially, and ours on appeal, to determine the validity of Rule 17 as an exculpatory clause.
Section 195 of the Restatement (Second) of Contracts (1981) provides in relevant part as follows:
(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if ...
(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty
We hold that this is a correct statement of the public policy of the Commonwealth. Cf. Employers Liability Assurance Corporation, Ltd. v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966) (exculpatory clause is valid if (1) it is not a matter of interest to the public or State, (2) contract relates entirely to parties’ private affairs, and (3) each party is a free bargaining agent and clause is not in effect a contract of adhesion; even valid exculpatory clause will be strictly construed against party seeking immunity); Phillips Home Furnishings Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840 (1974), reversed on other grounds, 467 Pa. 43, 354 A.2d 542 (1976) (invalidated bank’s exculpatory provision in night depository agreement); Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super. 308, 287 A.2d 149 (1971) (negligent party may not exculpate himself from liability for property damage caused by violation of regulations intended for protection of public). See also Cumis Insurance Society, Inc. v. Girard Bank, 522 F.Supp. 414 (E.D.Pa.1981) (applying *531Pennsylvania law, ambiguity in exculpatory agreement resolved against bank).
In Warren City Lines, Inc. v. United Refining Co., supra, this court stated the reasons for such a public policy:
The widespread use of property and liability insurance does not invalidate the policy argument against contracts transferring responsibility for the violation of public safety measures enacted or authorized by the legislature. If all that were involved was the shifting of ultimate loss from one insurer to another, we would not be concerned with the private transfer of risk by contractual agreement. It is an unescapable fact, however, that the party transferring the risk has no incentive to use reasonable care when it is held harmless for all losses resulting from its own negligence, and its insurer has no incentive to provide the transferor with loss prevention services or inspection. This creates a particularly dangerous situation for the public where 1) the party transferring the risk is better able to prevent loss or reduce the risk associated with loss, or 2) where the party to whom the risk has been transferred does not fully realize the responsibility which it has received.
220 Pa.Super. at 313-14, 287 A.2d at 151-52 (footnote omitted).
The reasoning in Warren City Lines is particularly appropriate to the case before us, and leads to the conclusion that the trial court was correct in holding that Rule 17 is void as against public policy. Certainly, appellant would have little incentive to ensure an adequate water supply if it were exculpated from all liability for damages resulting from an inadequate water supply. In addition, since appellant owns and has exclusive responsibility for the maintenance and repair of its water mains and hydrants, it is in the best position to reduce the risk of inadequate water supply. Finally, it is doubtful that appellant’s customers were generally aware of its exculpatory clause and therefore knew of their purported responsibility for damages *532caused by an inadequate water supply. Since Rule 17 is void, it did not preclude appellant’s liability to appellees.
-2-
Appellant’s next argument is that the trial court erred in refusing to instruct the jury on Section 328D of the Restatement (Second) of Torts (1965). Section 328D provides in relevant part as follows:
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
Appellant claims that appellees failed to introduce sufficient evidence to show that conditions (b) and (c) had been satisfied.
This argument is without merit. It amounts to an assertion that appellees should have tried their case according to a certain theory — the theory of res ipsa loquitur as stated in Section 328D — and that because appellees’ evidence did not satisfy the conditions of that theory, appellees should lose. But it is not for appellant to say how appellees should have tried their case. It is of course true that in Gilbert v. Korvette’s, Inc., 457 Pa. 602, 327 A.2d 94 (1974), the Supreme Court adopted Section 328D of the Restatement. But Section 328D sets forth only one theory of circumstantial evidence on which a plaintiff may rely in attempting to persuade the jury that the defendant should be held liable. “A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant’s relation to it.” Section 328D, Comment b (italics *533added). See also Gilbert v. Korvette’s, Inc., supra, (res ipsa loquitur is rule of circumstantial evidence); Hollywood Shop, Inc. v. Pennsylvania Gas and Water Co., 270 Pa.Super. 245, 411 A.2d 509 (1979) (same). Here, while appellees relied primarily on circumstantial evidence to prove their case, they did not choose to attempt to prove their case under Section 328D. Rather, they introduced evidence beyond the “mere occurrence of the event and the defendant’s relationship to it;” specifically, they introduced evidence of statements allegedly made by employees of appellant — evidence that we shall discuss in the next part of this opinion. Since appellees did not rely on Section 328D, the trial court did not err in refusing appellant’s request to instruct the jury on Section 328D.
The instruction the court did give regarding circumstantial evidence was as follows:
Under the law circumstantial evidence may be relied upon to prove a case or a contention or a claim. In this case you have heard what the law calls circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances from which it is reasonable to infer the existence of another fact. However, before you can infer the other or alternative fact you must first be satisfied of the existence of the fact or circumstance from which the other or alternative fact is to be inferred. It is not necessary that every fact or circumstance point unerringly to liability. Nor is a party required to exclude every other reasonable hypothesis of the cause of the accident. The facts or circumstances from which the other or ultimate fact is to be inferred must be such that by reasoning from them without resorting to prejudice or guess you the jury can reach the conclusion contended for by the Plaintiff or the Defendant and that the conclusion must be the only one which logically can be reached. It is enough that there be sufficient facts for you the jury to reasonably say that the preponderance favors the conclusion. You may consider circumstantial evidence and you should give it whatever weight you believe it deserves. *534N.T. 821-22.
This instruction properly set forth the standard for proving a case on the basis of circumstantial evidence. Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 139, 153 A.2d 477, 480 (1959).
-3-
Appellant’s next argument is that the trial court erred in admitting into evidence certain statements allegedly made by unidentified employees of appellant. While I agree with the majority2 that the trial court erred in this regard, I write separately because I disagree with the standard applied by the majority for the admission of vicarious admissions.
The majority has concluded that the issue of what is the applicable standard for the admission of vicarious admissions under Pennsylvania law is not an open issue; in its view, the Supreme Court has held, and therefore we too must hold, that the applicable standard is the traditional, restricted rule, that a statement is admissible as an admission against the employer only if the employee had express or implied authority to make the statement. I have concluded, however, that Pennsylvania law is unclear and that therefore the issue is open, and, proceeding from that conclusion, that we should adopt and apply to the decision of this case the less restricted rule articulated in the opinion in Carswell v. Southeastern Pennsylvania Transportation Authority, 259 Pa.Super. 167, 393 A.2d 770 (1978), that an employee’s statement is admissible against the employer if the statement was made before the termination of the employment, concerns a matter within the scope of the employment, and is accompanied by sufficient indicia of reliability. (The opinion in Carswell was only the author’s; *535the other judges participating concurred in the result.) Judge CERCONE joins me in these conclusions. However, applying them, he would hold that the trial court properly admitted Chief Dudek’s and Mr. Loy’s testimony, in other words, that the proof satisfied the Carswell standard, see Opinion by CERCONE, J., whereas I would hold that the proof did not satisfy the Carswell standard and that therefore the trial court erred. Judge BECK agrees with Judge CERCONE and me that the Carswell standard should be adopted, but she agrees with the majority that this court is precluded by the doctrine of stare decisis from adopting the Carswell rule.
In concluding that the traditional, restricted rule is still law in Pennsylvania, the majority relies particularly on Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), and Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). In Berkebile, the Court ordered a new trial and therefore chose to comment on several of the trial court’s evidentiary rulings. The Court stated:
The trial judge excluded a memorandum of defendant’s chief test pilot to the defendant’s president dated January 24, 1960, as hearsay. The memorandum was written by Captain Erickson while he was an agent of defendant in the course of his duties and within the scope of his authority, and thus is admissible as substantive evidence against the defendant.
462 Pa. at 102, 339 A.2d at 903.
The majority concludes that this language indicates that the Court applied the traditional, restricted rule, in finding the memorandum admissible. However, the Court’s limited statement of the grounds for admissibility does not disclose which rule the Court applied. Moreover, its decision did not require application of the traditional, restricted rule, for since that rule was apparently met, there was no need to consider whether the memorandum would have been admissible under a less restricted rule.
In Murray, the Court found inadmissible a portion of a letter, which had been found in the city’s files and stated *536that “a few years back this division had sewer trouble at this location.” The Court stated:
Neither was it admissible as an admission by an agent of the city against the city’s interest. Admissions of a declarant are not admissible against his asserted principal, unless the declarant’s agency and authority are first established: Central Pennsylvania Telephone Co. v. Thompson, 112 Pa. 118, 3 A. 439 (1886); Yubas v. Makransky, 300 Pa. 507, 150 A. 900 (1930). Such evidence was completely absent.
413 Pa. at 31, 195 A.2d at 794.
Again, this statement does not suggest any requirement that the traditional, restricted rule be applied. For as will be discussed more fully, under any rule — strict or less strict — the declarant’s statement is not admissible unless the declarant’s agency has been established. Since the Court found that “evidence [of the declarant’s agency and authority] was completely absent,” the conclusion followed without more that the declarant’s statement was inadmissible. Thus, as in Berkebile, there was no need for the Court to consider whether the traditional, restricted rule was to be preferred as sounder than a less restricted rule.
The majority cites other decisions by the Supreme Court, but neither do these compel the conclusion that the Court has settled upon the traditional, restricted rule to be preferred as sounder than a less restricted rule. Watkins v. Sharon Aerie, No. 327 Fraternal Order of Eagles, 423 Pa. 396, 223 A.2d 742 (1966), is like Murray in that there, there was no proof of agency. Adams v. Mackleer, 239 Pa.Super. 244, 361 A.2d 439 (1976), did not involve an agency situation at all. Mahler v. Singer, 285 Pa. 540, 132 A. 718 (1926), and Geesey v. Albee Pennsylvania Homes, Inc., 211 Pa.Super. 215, 235 A.2d 176 (1967), involved the admissibility of an attorney’s statement against the client, which is an issue that has long been treated “more strictly than in respect to statements by other types of agents”. McCormick on Evidence § 267 at 644 (Cleary ed. 1972).
*537I entirely agree with the majority that at one time the Supreme Court adhered to the traditional, restricted rule— as courts in general did. The issue, however, is whether the Court still does. The manner in which one resolves this issue will depend upon one’s attitude towards the doctrine of stare decisis, in particular as the doctrine applies to this court as an intermediate appellate court.
I readily acknowledge that it is arguable that an intermediate appellate court should be cautious about any possible deviation from the doctrine of stare decisis. In this view, the decisions of the court of last resort should be read conservatively, that is, as not changing the law unless change is plainly indicated. Applied here, that would mean that since Berkebile and Murray do not plainly state any departure from the traditional, restricted rule, we must apply that rule; if any departure is to be made, it should be by the Supreme Court. I believe that this is a fair summary of the majority’s position, and I respect it as a worthy position.
Nevertheless, for my part, I believe that an intermediate appellate court should be bold rather than cautious. We are able, if we wish, to serve as a laboratory of the law. The tensions first experienced by the trial courts are next experienced by us. Certainly, where the Supreme Court has clearly resolved those tensions, one way or another, we must abide by that resolution. But where the Supreme Court’s decisions may reasonably be read as ambiguous, we should not hesitate to explore the issues with fresh eyes, for in that way we may best serve not only the trial courts but also the Supreme Court. If our exploration convinces us that a given rule or principle of law should be restated, we may undertake restatement and thereby offer guidance to the trial courts. The Supreme Court may then choose between two courses of action. It may allow further appeal, and helped, it is to be hoped, by our discussion of the rule or principle in question, either correct or approve our restatement; or it may stand aside for awhile and watch to see how as a practical matter our restatement works in the *538trial courts. Thus we may assist in the development of the law, ensuring, as best we can, that it will be responsive to society’s problems as those problems arise and are manifested in litigation.
The situation presented by this case seems to me just the sort of situation in which we may, and therefore should, assist in the development of the law. The majority concedes “the often harsh results effected by the precise and parsimonious exceptions to the rule against hearsay.” See Majority opinion at 521. Perhaps, as the majority believes, the Supreme Court is still committed to imposing the harsh results effected by the traditional, restricted rule against vicarious admissions, but I do not so read its decisions. As will be discussed in a moment, the traditional, restricted rule has in recent years been abandoned in jurisdiction after jurisdiction. In these circumstances the Supreme Court’s resort to such oblique rulings as in Berkebile and Murray seems to me significant as suggesting hesitancy about the wisdom of adhering to the traditional, restricted rule. (Surely the majority’s characterization of the Court’s rulings as “unflinching” is unwarranted. Majority opinion at 522.) I therefore do not believe that we are precluded by the doctrine of stare decisis from exploring the basis of that rule and considering the force of the criticisms that have been made of it. In this regard, perhaps after all Judge MONTEMURO and I are not so far apart. For while he finds himself “powerless” to depart from the traditional, restricted rule, Majority Opinion at 521, he does “entreat” the Supreme Court to re-examine the rule, id. at 522, going on to offer his own criticism (and his criticism of my criticism) of the rule, id. at 522-528. Similarly, Judge BECK urges the Supreme Court to reconsider its earlier decisions and offers her own criticisms of the traditional rule and of Judge MONTEMURO’s criticism of the Cars-well rule. I don’t propose to respond to Judge MONTEMURO’s criticism of my criticism, beyond noting that I agree with much of what Judge BECK says, but I do share his and Judge BECK’s hope that the Supreme Court will re-ex*539amine the traditional, restricted rule — now that this court has decided that it is powerless to depart from it.
For me, the conclusion is inescapable that the traditional rule is illogically and unnecessarily restrictive. The premise of the rule against hearsay evidence is that the trier of fact is more likely to arrive at the truth if witnesses are cross-examined. Therefore, in considering whether a hearsay statement should be admitted as within an exception to the rule, the central inquiry should always be whether the circumstances giving rise to the statement offer sufficient assurances of reliability to compensate for the inability to cross-examine the declarant. The traditional rule’s emphasis on the declarant’s authority does not recognize that this is the central inquiry. For while the fact that the declarant did have authority to make the statement offers adequate assurance of reliability, the mere fact that he did not have authority in no way shows ««reliability. To make admissibility of the statement turn upon the declarant’s authority is thus simply arbitrary. One court has made this point as follows:
To say ... 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 ... 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.
Martin v. Savage Truck Line, Inc., 121 F.Supp. 417, 419 (D.D.C.1954).
The traditional, restricted rule has therefore been severely criticized by distinguished commentators on the law of *540evidence, and “[a] substantial trend favors admitting statements related to a matter within the scope of the agency or employment.” Fed.R.Evid. 801(d)(2)(D), Advisory Committee’s Note (citations omitted). And see McCormick on Evidence § 267, at 641 (Cleary ed. 1972); 4 Wigmore on Evidence § 1078 (Chadbourn ed. 1972) and 1983 Supp. (collecting cases and jurisdictions).
Once the arbitrariness of the traditional, restricted rule is appreciated, the question arises how to formulate a less restricted rule that will still fairly protect the employer. The formulation in the federal rules is that the statement must be “by [the] agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.” Fed.R.Evid. 801(d)(2)(D). This formulation has been widely copied. See Wigmore, 1983 Supp., § 1078, at 21 n. 2 (some nineteen states have copied the federal rule); see also D. Binder, Hearsay Handbook § 28.04 (2d ed. 1983) (characterizing traditional, restricted rule (“[t]he old common law rule”) as “now a minority view”). However, it is not clear from the formulation in the federal rules whether to be admissible the statement must be one that the agent or servant could himself have given in testimony. Suppose, for example, that the statement was by an employee, while he was an employee, and concerning a matter within the scope of his employment, but that it was not a statement that the employee could himself have given in testimony because it was not made on the basis of his personal knowledge. One federal court has admitted such a statement. Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626 (8th Cir.1978). This result, however, has been criticized, 4 Weinstein’s Evidence 164-65 (1981) (arguing that requirement of personal knowledge should be read into Rule 801(d)(2)(D)), and the opinion in Carswell concluded that it was not enough to show only that the statement was by an employee, while he was an employee, and concerning a matter within the scope of his employment. In addition, it was said, there must be proof of circumstances sufficient to *541justify an acceptance of the statement as reliable. (Since there was no such additional proof, admission of the statements was held error and a new trial was granted.)
Having again examined this problem, I remain of the view that we should adopt the rule stated in Carswell. For it appears to me to strike a proper balance. On the one hand, unless the traditional, restricted rule is made less restricted, many statements will not be admitted that as a matter of common sense should be admitted as reliable despite the inability to cross-examine the declarant. Wig-more and Weinstein, supra, among others, have collected the cases, and it is impossible not to agree with Wigmore’s comment that the “quibbles [as to whether there was or was not authority to make the statement] bring the law justly into contempt with laymen.” Wigmore, supra at 166 n. 2. On the other hand, there is force to the criticism that because an agent or employee may not be, or feel, personally responsible for what occurred — an accident, for example — safeguards should be provided for the reliability of his statement. One such safeguard is the requirement that the statement must concern a matter within the scope of the agency or employment; another is that the statement must have been made during the existence of the agency or employment. Since ordinarily an employee will not jeopardize his job by making a false statement, costly to his employer, it is arguable that these two requirements are enough. In this view, “[t]he authority to do an act would conclusively imply authority to speak narratively about the act, if the utterance were made before the termination of the agency.” Weinstein, supra at 162, quoting Falknor, “Hearsay,” 1969 Law & the Social Order 591, 601. I am not myself persuaded, however, to go so far. Instead, I agree with Weinstein’s statement, supra at 157:
Although commentators have suggested that an employee will not make a false statement damaging to his employer, both because he is interested in his employer’s welfare and, because he does not wish to jeopardize his job, these reasons ... do not vindicate the unqualified *542admission of statements not based on personal knowledge. Such a statement may often consist of no more than gossip or speculation about the matter in issue [footnote omitted]. The mere fact that the agent heard it and repeated it does not remove any of the dangers against which the hearsay rule has traditionally guaranteed.
I should therefore hold, as in Carswell, that to be admissible as a vicarious admission, the statement must be by an agent or employee; it must concern a matter within the scope of the agency or employment; it must have been made during the existence of the relationship; and in addition — that is, adding a requirement not specifically included in the federal rule — the circumstances of the statement must be sufficient to justify an acceptance of it as reliable. Weinstein evidently would summarize this last requirement as a requirement that it appear that the statement was made on the basis of the agent’s or employee’s personal knowledge. Weinstein, supra at 157, 164-65. I believe, however, that it is better to state the requirement more generally.
Judge MONTEMURO expresses the opinion that the rule articulated in Carswell would create a “completely unworkable” exception to the rule against hearsay. Majority opinion at 525 n. 7. This characterization is, I suggest, unwarranted, given the experience of all of the federal and many of the state courts. In this regard, moreover, one should bear in mind that the rule articulated in Carswell is arguably more restrictive than the federal rule in making specific (what in the federal rule is at most only implied, see Weinstein, supra) the requirement that the circumstances of the employee’s or agent’s statement must be sufficient to justify an acceptance of the statement as reliable.
This said, it is in order to consider the admissibility of the statements in question in this case. I agree with the majority that if indeed we are bound to follow the traditional, restricted rule, the statements were inadmissible, for there was no proof that the unidentified declarants quoted *543by Chief Dudek and Mr. Loy had either express or implied authority to make them. However, were the statements admissible under the less restricted rule articulated in Cars-well?
This question need not be answered with respect to the statement testified to by Chief Dudek. This is so because as regards the declarant he quoted, there was insufficient evidence of agency. Under any test governing the admissibility of vicarious admissions — traditional, restricted rule or less restricted federal or Carswell rule — it is essential that the declarant’s agency first be established, and this may not be done by the declarant’s own statement of his agency; it must be done by other evidence. 4 Wigmore on Evidence, supra, § 1078 at 176; McCormick on Evidence, supra, § 267 at 642.
Appellees acknowledge that this is the law, but they argue that the declarant’s agency was sufficiently proved by such other evidence. They particularly emphasize the evidence that the declarant approached Chief Dudek in response to a call placed to appellant, requesting that someone report to Chief Dudek. In this regard, they note that Chief Dudek testified that he was distinguished from the other firefighters on the scene because he was dressed all in white. This argument, however, is not persuasive. It is true that the fact of agency may be proved by circumstantial evidence, see McCormick, supra, but here the circumstantial evidence was insufficient to prove agency. Chief Dudek did not himself place the call to appellant, but called the fire alarm operator and requested that he call. Since the fire alarm operator did not testify, the record does not justify appellees’ assumption, either that the operator named Chief Dudek and requested that he be sought out, or that the operator requested that a man dressed all in white be sought out. Moreover, it is undisputed that there were employees of appellant’s at the scene of the fire. Mr. Ratliff, one of appellant’s employees, testified that he received a call from his office and went to the fire at approximately 3:30 a.m. Mr. Marinelli, another of appellant’s em*544ployees, testified that he received a call from his office and went to the fire with Mr. Silvestri, his assistant, at approximately 2:45 a.m. Both witnesses testified that they spoke with firefighters at the scene. The record does not disclose, however, with which of the many firefighters on the scene they spoke, or the substance of the conversation. Finally, Mr. Ratliff and Mr. Marinelli both testified that they left the fire at approximately 5:00 a.m. Chief Dudek, however, testified that he requested the fire alarm operator to call appellant shortly after 2:00 a.m., and that the declarant approached him at approximately 6:00 a.m. If indeed the operator did call appellant and request that one of its employees seek out Chief Dudek, or seek out a firefighter dressed all in white, it would seem that Mr. Ratliff, or Mr. Marinelli, or Mr. Silvestri, would have spoken to the Chief. But, if one of them did, the redord does.not show it. It therefore remains a matter of speculation as to who the man was who approached the Chief, about four hours after the Chief asked the fire alarm operator to call appellant, or why he approached the Chief.
Appellees argue, however, that the content of the declarant’s statement itself shows the fact of agency, in that its reference to the dimension of the water main was a reference to a matter that only one of appellant’s employees would know. It is true that the content of a statement may support an inference regarding the author of the statement, but that principle is not applicable here. It was stipulated at trial that the main was in fact a six inch main. The declarant, however, stated that it was a four inch main. One can hardly infer that a declarant is another’s employee on the basis of an inaccurate statement about the other’s business.
With respect to the statement testified to by Joseph Loy, the analysis is somewhat different but the result is the same. For with respect to this statement, there was sufficient evidence of the fact of agency. It therefore is necessary, in my view, though not in the majority’s, to consider its admissibility under the less restricted rule articulated in *545Carswell. Upon applying that rule, I conclude that the statement was not admissible because there was insufficient evidence to justify acceptance of it as reliable. Specifically, it does not appear either that the statement concerned a matter within the scope of the declarant’s agency or that the declarant had personal knowledge of the matter asserted.
As mentioned, there was sufficient evidence of agency: Mr. Loy testified that he knew that the declarant — an “old Italian fellow” — was employed by appellant because the declarant was driving one of appellant’s trucks on the morning of the fire, he had seen him in the truck before, had spoken to him before, and had sold him tires. This was sufficient circumstantial evidence from which the jury could infer the declarant’s agency.
With respect, however, to the reliability of the declarant’s statement: As has been noted, the declarant allegedly stated, “I guess you think I played a dirty trick on you. We weren’t allowed to work overtime.” The trial court’s admission of this statement illustrates the danger of vicarious admissions pointed out by Weinstein: they “often consist of no more than gossip or speculation about the matter in issue.” Thus: There was no evidence that the declarant had himself worked on the mains in question; or that he knew on the basis of his own observation what work had been done; or who it was who had forbidden overtime work; or how he knew that such an order had been given (had he heard it? or had someone told him it had been given? And if the latter, had that someone heard it?). Finally, the statement is almost empty of facts. “[Pjlayed a dirty trick” is an opinion, unaccompanied by any statement of basis; and there is no explanation of how, or why, an order not to work overtime constituted a “dirty trick.”
Given these facts, it cannot be maintained that the circumstances giving rise to the hearsay in question offered sufficient assurances of reliability to compensate for the inability to cross-examine the declarant. To the contrary, as one considers the statement, the questions one would like to put to the declarant on cross-examination spring to mind *546at once, and no where will one find in the record any assurances as to what the answers to those questions would be.
For purposes of contrast and illustration, Nobero Co. v. Ferro Trucking Inc., 107 N.J.Super. 394, 258 A.2d 713 (1969), offers an excellent example of a situation in which a statement by an employee was admitted as a vicarious admission of the employer and would be properly admissible under the rule articulated in Carswell. In Nobero a landlord sued a tenant to recover for damages resulting from a fire allegedly caused by the negligence of the tenant’s employees. The evidence at trial established that two of the tenant’s employees were in the building when the fire broke out — a foreman and a mechanic. The fire captain testified that one of these employees stated to him at the scene of the fire:
They had stenciled the name of the trucking firm on the door of the truck and there was an overspray of paint on another section of the truck and they were washing it off with gasoline ... there was a flash of fire and the fire developed.
Both employees testified at trial; they said that they were working on the truck when the fire broke out — one replacing the tail light and one removing the stencil. Thus, unlike the present case, the statement was factual in nature, and it appeared that the employee making the statement must have had personal knowledge as to the matter asserted therein.
I therefore concur in the majority’s conclusion that admission of the statements testified to by Chief Dudek and Mr. Loy was error and requires the grant of a new trial.
. Article III, Section 18 allows the General Assembly to enact workmen’s compensation laws and then goes on to provide in relevant part, “but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property____”
. While I recognize that only two judges (CAVANAUGH and MONTGOMERY, JJ.) have joined Judge MONTEMURO’s opinion without reservation, that is including his view as to what the rule should be, I think it is still appropriate to consider his opinion the “majority opinion” because four judges (CAVANAUGH, McEWEN, BECK and MONTGOMERY, JJ.) agree with the holding that this court is bound by the doctrine of stare decisis to apply the traditional rule.