(dissenting).
I respectfully dissent.
The plaintiff demanded and got a jury trial to determine the fact issues, one of the most important of which was whether the City was acting in a proprietary capacity. Rumsey neither pleaded nor proved this fact, which we have said was necessary.1 This circumstance should have resolved the matter, since presumptively the City operates in a governmental capacity.
It is no answer to assert that in two previous swimming pool cases we have affirmed the City’s role as proprietor, since each case must stand or fall on its own facts, and no end of stare decisis can establish that a city can’t operate a swimming pool other than in a proprietary capacity.
Nor is it an answer to say that the issue of immunity conclusively was resolved against the City by a pre-trial stipulation that Rumsey was a “business invitee,” — implying that such conclusion of necessity put the City in competition with privately operated pools. Two good reasons refute such conclusion:
1) A person, for example, may be a business invitee when he goes to the city treasurer to pay the tax on the business he operates, but such a circumstance could not ipso facto make the city a businessman under any of the rules incident to a game of musical chairs. The whole thing is a matter of fact, — that’s all, — and Rumsey failed to allege or prove the conditionally precedential required to construct his claim of tortious compensability.
2) Assuming arguendo, that the officials of the city attempted to stipulate away the latter’s immunity, it couldn’t be done, since a government official cannot sell the city’s immunity down the river with impunity.2
As to the second trial, the main opinion says it was surplusage because the governmental immunity matter was resolved by stipulation at pretrial. The latter fallacious conclusion followed the equally fallacious *316assumption of the former.3 Counsel for plaintiff himself did not entertain any such gratuitous or novel assumption, since, by the very motion for another trial, he conceded that Rumsey had failed to plead or prove a proprietary role by the City.
It seems inconceivable to this writer that under the rules, a litigant who gets a jury verdict which is valueless because of failure to plead and prove the factual gist of his cause, could simply ask that another trial be had before a different arbiter of the facts, at a later date, to prove a case he failed to prove before. If my conclusion is correct, and such second trial is abortive, it is inescapable to conclude other than that the burden of a plaintiff to prove proprietary capacity of a city cannot be eliminated in his case in chief, by assuming that counsel on the other side, merely agreeing at pretrial that the plaintiff was a “business invitee,” can thus waive the city’s claim of sovereign immunity and thus give the plaintiff another trial on an essential provable issue.
In my opinion this case should be reversed for lack of pleading and proof at the only legitimate trial that was had.
CALLISTER, J., concurs in the dissenting opinion of HENRIOD, C. J.. Wade v. Salt Lake City, 10 Utah 2d 374, 353 P.2d 914 (1960).
. Tooele v. Elkington, 100 Utah 485, 116 P.2d 406 (1941).
. Ramirez v. Ogden, cited in the main opinion, is different as to facts but not •with respect to charging an admission is concerned. See also Jopes v. Salt Lake County, 9 Utah 2d 297, 343 P.2d 728 (1959).