#### W. H. FOUST v. CITY OF DURHAM.

(Filed 15 January, 1954.)

1. Pleadings § 15—

In passing upon a demurrer, the court is confined to a consideration of the complaint without reference to any fact not alleged therein.

2. Municipal Corporations § 12—

A municipality may not present the defense of governmental immunity by demurring unless the facts alleged in the complaint disclose that the acts complained of were committed by it in furtherance of a governmental function.

3. Same—

This action was instituted to recover damages resulting to plaintiff’s goods stored in a basement when the basement was flooded with water from defendant municipality’s main. Plaintiff alleged that the city owned and operated its water system in its proprietary capacity. Held: The allegation is not a mere conclusion, hut is an allegation of an ultimate fact admitted by the demurrer.

4. Pleadings § 3a—

Ordinarily the complaint should state the material and ultimate facts upon which plaintiff’s rights depend, and should not include allegation of evidentiary facts.

Appeal by defendant from Carr, J., September Term, 1953,.Dubham.

Affirmed.

*307' Civil action ex delicto to recover compensation for damages to personal property, beard on demurrer.'

Tbe plaintiff in bis complaint alleges in substance that (1) on 11 March 1953 be bad stored in tbe basement of Hopper’s Jewelry Store, located on West Main Street in Durham, numerous articles of personal property; (2) defendant is a municipal corporation; (3) it owns and operates, in its proprietary capacity, a water department and supply mains for the purpose of supplying, and does supply water to tbe inhabitants of tbe city as a business enterprise for profit; (4) in connection with its water works system it maintains a ten-inch water main, over sixty years old, under tbe surface of West Main Street, for tbe purpose of supplying water to its citizens; (6) on 11 March 1953, this water main burst, as a result of which Avater in large volume escaped to tbe surface of tbe street and flooded tbe basement of tbe mercantile building where be bad bis personal property stored; (7) as a result thereof, bis property was damaged to tbe amount of $1,243.15; and (8) be gave timely notice of bis claim to defendant.

He further alleges that tbe bursting of tbe water main was due to tbe negligence of tbe defendant in tbe particulars detailed in tbe complaint, and that after notice of tbe situation, tbe defendant (1) negligently failed to cut off tbe supply of water to said main, thus increasing tbe flooded condition of tbe store; (2) failed to exercise due diligence in removing tbe water from tbe basement; and that (3) the negligence alleged Avas tbe sole proximate cause of tbe damage to bis property. He prays judgment in tbe sum of $1,243.15.

Tbe defendant appeared and demurred to tbe complaint for that tbe complaint fails to state a cause of action for tbe reason tbe city, in committing the acts complained of, was acting in its governmental capacity, and is therefore exempt from liability.

Tbe court below overruled tbe demurrer and defendant excepted and appealed.

A. A. McDonald and Victor 8. Bryant, Jr., fox plaintiff appellee.

Claude V. J ones for defendant appellant.

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*308sion 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.