Home › Case briefs › Civil Procedure

McCormick v. Kopmann

Illinois Appellate Court, Third District · 1959 · Civil Procedure

Civil ProcedureAlternative PleadingJudicial AdmissionsDirected Verdictalternative pleadinginconsistent countsjudicial admissionswrongful death

Facts

Lewis McCormick was killed when his automobile and Kopmann's truck collided on Main Street in Gifford, Illinois. Plaintiff alleged in Count I that Kopmann negligently crossed the center line and struck McCormick, and that McCormick was in the exercise of ordinary care; in Count IV, pleaded in the alternative against tavern owners, she alleged that alcohol sold to McCormick caused his intoxication and that as a result of that intoxication he drove so as to cause the collision. At trial, plaintiff introduced evidence that Kopmann crossed the center line and also evidence that McCormick had consumed beer before the accident, though a witness with him testified McCormick was sober. The jury found Kopmann liable under Count I and found the Huls not guilty under Count IV.

Issue

May a plaintiff, in one action, plead and try inconsistent alternative counts against different defendants when the plaintiff is genuinely uncertain which version of the facts is true? If so, do allegations in one alternative count operate as binding judicial admissions that defeat the other count or require election before submission to the jury?

Rule

Under the Illinois Civil Practice Act, when a pleader is genuinely in doubt as to which of two or more statements of fact is true, the pleader may state them in the alternative, regardless of consistency, in the same or different counts against different defendants. Each alternative count stands on its own; inconsistent allegations in one alternative count are not grounds to dismiss another, and good-faith alternative factual allegations based on genuine uncertainty are not binding admissions against interest admissible to destroy the other count. In testing a motion for directed verdict, the sufficiency of the evidence must be judged separately as to each count, considering only evidence and inferences favorable to the plaintiff on that count.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

After a fatal nighttime collision in Peoria, Maya Torres sues Nolan Pike for negligence, alleging he ran a red light and that her husband was using ordinary care. In a separate count expressly pleaded in the alternative, she sues Riverbend Taproom, alleging the tavern served her husband alcohol, he became intoxicated, and his intoxication caused the crash. Her husband died at the scene, and no surviving witness can fully explain what happened.

Nolan moves to dismiss, arguing the two counts are fatally inconsistent because the husband cannot both have exercised ordinary care and have caused the crash through intoxication. How should the court rule?

Explanation. The majority held that inconsistent and even mutually exclusive counts may be pleaded together in the alternative when the plaintiff is genuinely in doubt about what the true facts are and which defendant, if any, is liable. Each count stands on its own, and inconsistency between counts is not itself a ground for dismissal. The fact that the decedent cannot testify supports genuine uncertainty.