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McCormick v. Kopmann

Citation. 23 Ill. App. 2d 189, 161 N.E.2d 720, 1959 Ill. App.
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Brief Fact Summary.

Lewis McCormick (McCormick) was killed in auto accident with a truck operated by Kopmann (Defendant). McCormick’s wife (Plaintiff) sued Kopmann and Huls (Defendants), the owners of the bar where McCormick had drunk beer before the accident. Two counts in Plaintiff’s complaint were alternative pleadings. Defendants moved for a directed verdict, but the motion was denied. Kopmann appealed.

Synopsis of Rule of Law.

A complaint may contain inconsistent allegations, even though the proof of one negates any fault on the foundation of the other.


McCormick was killed when a truck operated by Kopmann collided with his car. Plaintiff sued the operator of the car and the Huls, the owners of the bar where McCormick had beer before the accident. Count one of Plaintiff’s complaint alleged that Kopmann, negligently drove his truck across the center-line and collided with McCormick’s car. Count four, brought in the alternative to count one, under the Illinois Dram Shop Act alleged that the Huls, sold alcoholic beverages to McCormick, which rendered him intoxicated. As a result of the intoxication, he drove his car in such a manner as to cause a collision with Kopmann’s truck. Kopmann moved to dismiss the complaint on the grounds that the contradictions between count one and count four were fatal. The trial court denied his motion and the jury returned a verdict against Kopmann for $15,500 under count one and for the Huls under count four. Kopmann appealed.


Whether inconsistent allegations can be pleaded simultaneously?


Yes. Judgment is affirmed. Plaintiff had the right to go to trial on both counts and to adduce all the proof she had under both counts. Plaintiff could not recover on both counts simultaneously, since the two counts are mutually exclusive. However, the Illinois Civil Practice Act states that claims may be made in the alternative regardless of consistency. In order to ensure that controversies may be settled and justice is accomplished, a Plaintiff may plead in the alternative. Nonetheless, alternative pleading is not permitted when the pleader knows which of the inconsistent statements are true and which are false. Here, there is nothing that indicates the Plaintiff know that the averments in either court were true. The key witness here to the accident is dead, therefore, pleading alternative sets of facts is often the only feasible way to determine what happened.


Rule 8(e) of the Federal Rules of Civil Procedure allows a Plaintiff to plead alternative allegations. The pleader is also permitted to plead inconsistent versions of the facts. The purpose in allowing plaintiffs to plead in the alternative is to ensure that controversies may be settled and justice is accomplished. Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of Pennsylvania Citation. 103 F.3d 294 (3rd Cir. 1996).

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