This is an appeal by plaintiff from a judgment in favor of defendant, City of Los Angeles, after the trial court sustained an objection to the introduction of evi *334 dence on the ground that the complaint as amended failed to state a cause of action against defendant municipality.

The essential facts alleged in the amended complaint are:

On May 21, 1932, the SS. Hahonesan Marti, pursuant to rules and regulations of the board of harbor commissioners of the City of Los Angeles, paid defendant municipality a fee for the purpose of obtaining a pilot for said steamship from the open sea to docks of which plaintiff was lessee, located in the harbor. , John Oliegreen, a duly licensed pilot, employed by defendant municipality, was placed in control of the steamship. Due to his negligent handling of the vessel, it collided with the wharves maintained by plaintiff, causing damage in the sum of $4,093.75.

These questions are presented for determination:

The first question must be answered in the affirmative. The law is settled that a municipality is engaged in a governmental function only when exercising acts of sovereignty, such as those pertaining to:

It is likewise settled that, when a municipality engages in functions that are ordinarily exercised by private persons and which have no relation to the public health or police power, it is engaged in proprietary functions. (Benton v. City of Santa Monica, 106 Cal. App. 339, 343 [ 289 Pac. 203 ].)

Applying the foregoing rules to the instant case, it is evident that in furnishing pilots to vessels entering and leaving the port of Los Angeles, defendant municipality was engaged *335 in a proprietary and not a governmental function. This conclusion finds support in the following eases: Coleman v. City of Oakland, 110 Cal. App. 715, 721 [ 295 Pac. 59 ]; Giovanni v. City of Philadelphia, 59 Fed. 303, 304 ; City of Philadelphia v. Gavagnin, 62 Fed. 617, 619 ; Guthrie v. City of Philadelphia, 73 Fed. 688 .

In Coleman v. City of Oakland, 110 Cal. App. 715 [ 295 Pac. 59 ], a case in which the municipality was held liable for damages resulting from the negligent operation of a city-owned truck while engaged in work on the municipal airport, Mr. Justice Dooling says at page 720:

In Giovanni v. City of Philadelphia, supra, a case holding the defendant city liable for damages resulting from the negligent- handling of a towboat owned by the municipality, Judge Butler says at page 304:

In City of Philadelphia v. Gavagnin, supra, the United States Circuit Court of Appeals for the Third Circuit, in affirming Giovanni v. City of Philadelphia, supra, at page 619, says:

In Guthrie v. City of Philadelphia, supra, a city-owned and operated ice boat undertook to break ice within a dock and through its negligent operation injured the dock. Holding the city liable, Judge Butler says at page 688:

It is the rule that in the absence of special legislation a municipal corporation is not liable for injuries resulting from negligent acts of its agents engaged in governmental functions (18 Cal. Jur. 1094, sec. 345; 8 Cal. Jur. Ten-year Supp. 223), but a municipal corporation is liable for damages resulting from negligence of its agents or servants when acting in its proprietary capacity. (18 Cal. Jur. 1096, sec. 346; 8 Cal. Jur. Ten-year Supp. 225.) Therefore, since defendant municipality was engaged in a proprietary function at the time of the accident and the complaint as amended alleged that the injury resulted from the negligence of the city’s agent, a cause of action was stated against defendant City of Los Angeles.

The second question must be answered in the negative. The law is settled that the defense of ultra vires is not available to a municipal corporation, unless .it is pleaded. (Vol. 6, McQuillin, Municipal Corporations, 2d ed., 713 (1937) ; S. W. Towle Lumber Co. v Anderson, 208 Cal. 371, 374 [ 281 Pac. 500 ].) In the present case this defense was not pleaded and therefore may not be urged by defendant municipality.

For the foregoing reasons the judgment is reversed.

Grail, P. J., and Wood, J., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 15, 1937, and the following opinion then rendered thereon: