Foust v. City of Durham

79 S.E.2d 519 (1954)

239 N.C. 306

FOUST v. CITY OF DURHAM.

No. 758.

Supreme Court of North Carolina.

January 15, 1954.

*520 A. A. McDonald and Victor S. Bryant, Jr., Durham, for plaintiff-appellee.

Claude V. Jones, Durham, for defendant-appellant.

BARNHILL, Justice.

Defendant relies on the doctrine of governmental immunity, and both parties quote from the charter of the city. But in reviewing a judgment overruling a demurrer, we are confined to a consideration of the complaint, without reference to any fact not alleged therein. Towery v. Carolina Dairy, Inc., 237 N.C. 544, 75 S.E.2d 534. Unless the facts alleged disclose, as a matter of law, that the acts complained of were committed in furtherance of a governmental function, governmental immunity is an affirmative defense which may not be presented for decision by demurrrer. White v. City of 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. City of 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; City of Wilmington v. Schutt, 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. City of Durham, 181 N.C. 188, 106 S.E. 665, 24 A.L. R. 538; Mintz v. Town of Murphy, 235 N. C. 304, 69 S.E.2d 849. See also Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371, and cases there cited.

McKinney v. City of 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.