Foust v. City of Durham

Barnhill, J. Defendant relies on tbe doctrine of governmental immunity, and both parties quote from tbe charter of tbe city. But in reviewing a judgment overruling a demurrer, we are confined to a consideration of tbe complaint, without reference to any fact not alleged therein. Towery v. Dairy, 237 N.C. 544, 75 S.E. 2d 534. Unless tbe facts alleged disclose, as a matter of law, that tbe acts complained of were committed in furtherance of a governmental function, governmental immunity is an affirmative defense which may not be presented for deci *308 sion by demurrer. White v. Charlotte, 209 N.C. 573, 183 S.E. 730. And here there is no allegation that the main that burst was a “trunk water main” or that it was and is maintained for any purpose other than to deliver to its customers water for which it makes a charge and from which it realizes a profit. These allegations will not justify or support a reasonable inference that the main was and is maintained in promoting the public health, or sanitation, or fire protection. White v. Charlotte, supra. That is a question that will be presented for decision at the trial. The defendant in its brief contends that the allegations in the complaint that defendant operates its water works system in its proprietary capacity for the purpose of supplying water to the inhabitants of the city for profit is a mere conclusion not admitted by the demurrer. "We do not so construe it. Subject to certain exceptions, the rules relating to the contents- of a complaint limit the facts to be alleged to the material, ultimate facts upon which the plaintiff’s rights depend. Parker v. White, 237 N.C. 607, 75 S.E. 2d 615; Wilmington v. Schult, 228 N.C. 285, 45 S.E. 2d 364; Guy v. Baer, 234 N.C. 276, 67 S.E. 2d 47. A plaintiff should refrain from including in his complaint facts which are purely evidentiary in nature. Guy v. Baer, supra; Chason v. Marley, 223 N.C. 738, 28 S.E. 2d 223. Here plaintiff has adhered to this salutary rule of pleading. If, at the trial of this cause, he produces competent evidence of the ultimate facts alleged, he will have made out a case for the jury. His allegations are sufficient to entitle him to an opportunity to offer his testimony in support thereof. Determination of its sufficiency must await the trial. Munick v. Durham, 181 N.C. 188, 106 S.E. 665; Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849. See also Rhodes v. Asheville, 230 N.C. 134, 52 S.E. 2d 371, and cases there cited. McKinney v. High Point, 237 N.C. 66, 74 S.E. 2d 440, and the other decisions cited and relied on by defendant are distinguishable. The judgment overruling the demurrer is Affirmed.