Soils

Respondent sued appellant to recover for injuries sustained when a truck owned by appellant collided with one owned and driven by respondent. It was alleged the driver of appellant’s vehicle was appellant’s agent, but it is conceded no direct evidence on the contention, denied in appellant’s answer to the complaint, was introduced at trial. The sole question on appeal is whether, in view of that fact, the judgment in respondent’s favor should be affirmed. Respondent urges it must because (1) an inference of agency arose solely because appellant admitted ownership and permissive use of the offending vehicle, (2) there was evidence offered from which agency and the scope thereof could be inferred, or (3) that the essential facts were admitted at trial by appellant’s counsel. None of these contentions can be sustained.

Respecting contention (1), respondent urges us to decline to follow Stewart v. Norsigian (1944) 64 Cal.App.2d 540 [ 149 P.2d 46 , 150 P.2d 554 ], or alternatively, to distinguish it as a case not involving commercial vehicles. Stewart involved an action for wrongful death occasioned by a collision between a motorcycle and a private automobile. It was there…