The question presented by this appeal is whether, in an action against an infant for necessaries, when the plaintiff alleges in his complaint the fact of infancy, it is necessary for him to also allege the special facts which must be proved in order to make the infant liable?
An infant is not liable generally on its contracts, but only upon those made for it by the law, which, under peculiar circumstances, imputes a duty that the infant cannot of itself assume. The infant is not ordinarily liable even for necessaries, which are the usual and suitable means of support. It is not the primary duty of an infant to support itself, as that duty rests upon the father or upon some other person standing in locoparentis, and it is only when there is no such person who can or will discharge the duty that the infant becomes *Page 295 liable. (Wailing v. Toll, 9 Johns. 141; 2 Kent, 255; 16 Amer. Eng. Encyclo. Law [2nd ed.], 275.) This liability is an exception to the general rule, founded upon necessity, for the infant must live, and if there is no one else to support it, the law makes it liable even to a stranger who furnishes it with suitable means of support. Every infant is furnished with necessaries by some one, but it becomes liable therefor only under the special circumstances named. Hence, these special circumstances which create the liability must be proved or there can be no recovery. They cannot be presumed, for the presumption, in the absence of evidence, is that they do not exist. They are essential facts, of which the Code requires "a plain and concise statement." (Code Civ. Pro. § 481.) It is not enough to simply show that necessaries were furnished, for it must also appear that there was no one whose duty it was to provide them, or if there was such a person, that he failed to discharge the duty. As these facts must be shown by evidence, they must be set forth in the complaint, which measures the evidence that may be lawfully given at the trial.
These observations are made in the light of the fact that it appears from the complaint that the defendant is an infant. If that fact had not been expressly set forth, the defense of infancy, when alleged in the answer, would "be deemed controverted * * * by traverse or avoidance as the case requires." (Code Civ. Pro. § 522.) As the plaintiff alleged that fact she was bound to allege facts in avoidance thereof, which would not otherwise have been necessary. Having assumed to allege a fact constituting a defense, she was obliged to allege facts to avoid that defense. When she alleged that the person furnished with necessaries was an infant, she should also have alleged the facts showing why the infant was liable, as otherwise the legal conclusion would be against liability. The necessary allegation would not have been burdensome, for a single sentence would have sufficed. No authority in this state is cited to support the theory of the plaintiff that she can allege the infancy of the defendant, without alleging facts *Page 296 showing liability, notwithstanding such infancy. Infants, as wards of the court, are entitled to its special protection, and a fundamental rule of pleading should not be subverted in order to make a child, seven years old, liable for its own support, when, for aught that appears, it had a father able and willing to support it.
For these reasons I dissent from the judgment about to be pronounced by the court.
GRAY, BARTLETT, MARTIN, CULLEN and WERNER, JJ., concur with PARKER, Ch. J., for reversal; VANN, J., dissents.
Judgment reversed, etc.