(dissenting).
I respectfully dissent, because it seems to me the declaration before us, “Yes, I know, it’s not your fault” made in direct response to the statement of the driver to the injured person, “I’m sorry, lady, you pulled right out in front of me”, does contain the necessary circumstantial probability of trustworthiness to qualify it for admission as an exception to the hearsay rule, and does not run afoul of the opinion rule. As Wigmore states, Wigmore on Evidence, 3rd Ed., Vol. V, § 1422, the “ * * * practicable substitute for the ordinary test of cross-examination * * * ” as to declarations against interest is “Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed.” The entirety of what Mrs. Carpenter said meets this test.
As to the opinion rule, Wigmore points out that it should not apply to extra-judicial statements of deceased persons, anymore than it should to dying declarations, because the theory of the opinion rule “ * * * is that, wherever the witness can state specifically the detailed facts observed by him, the inferences to be drawn from them can equally well be drawn by the jury, so that the witness’ inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him by questions any more detailed data than his statement may contain, and hence his inferences are not in this instance superfluous, but ar.e indispensable”, Wig-more, supra, Vol. V, §§ 1569 and 1447.
In addition, I doubt if Mrs. Carpenter’s statement, under the circumstances, which I understood from oral argument were that the Carpenter car drove out in front of the dairy truck (a matter which Mrs. Carpenter as an occupant of the car would likely know about), is as much opinion as it is fact. As said in State v. Proctor (Mo. Sup.) 269 S.W.2d 624, 630, 48 A.L.R.2d 724, “ * * * what constitutes a statement of opinion or a statement of fact depends not alone upon the statement itself but upon the surrounding circumstances as well. * * * ” I do not think it is a distortion to regard all of what she said as being drawn from facts immediately under her observation as to the operation of the car in which she was riding. No doubt under some circumstances an expression as to fault is not admissible as a declaration against interest. But it is too broad a rule in my opinion to say this is always the case, as the majority opinion indicates.
The fact that hindsight might indicate that Mrs. Carpenter may have been too harsh on herself in what she did say (if it should later prove by reason of some fact or facts unknown to her that it was Grothoff’s responsibility despite her car pulling out in front of him) goes to thé weight to be given to her declaration and would be a matter of argument to the jury, but should not affect its admissibility.
The majority opinion also seems to rest the exclusion of the fault part of Mrs. Carpenter’s statement to some extent on the fear that the witness “at a trial may, intentionally or otherwise, change a word and convey a meaning completely different from that intended by the declarant”. The possibility always exists, of course, that a witness may testify falsely or mistakenly. But usually we do not let this possibility keep out otherwise admissible evidence. If we did, very little oral testimony would ever be admitted. Rather than excluding evidence because of this possibility (as, for example, the testimony of interested parties was at one time excluded on the theory that they were likely to testify falsely) we should receive it, leaving its weight and value to be determined by other considerations. We can rely on cross-examination, the scrutiny to which the witness is subjected by the court and jury, and the efficacy of the investigation of the facts by counsel prior to trial, as our safeguards against falsity and mistake.
*387I would therefore hold that the trial court was correct in admitting the entire statement and would affirm the judgment.