McCormick v. Kopmann
23 Ill. App.2d 189, 161 N.E.2d 720 (1959)
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Rule of Law:
Under the Illinois Civil Practice Act, a plaintiff may plead inconsistent and mutually exclusive factual allegations in alternative counts when genuinely uncertain of the facts, and such allegations cannot be used as binding judicial admissions to defeat the alternative count.
Facts:
- Lewis McCormick consumed one bottle of beer at a tavern operated by Anna Huls.
- McCormick then consumed one or two additional bottles of beer at a tavern operated by John and Mary Huls.
- Shortly thereafter, McCormick was driving his automobile on Main Street in Gifford, Illinois.
- A truck operated by Lorence Kopmann, traveling in the opposite direction, collided with McCormick's automobile.
- Lewis McCormick was killed as a result of the collision.
Procedural Posture:
- The administratrix of Lewis McCormick's estate filed a lawsuit in the Circuit Court of Champaign County.
- The complaint included Count I for wrongful death against driver Lorence Kopmann and an alternative Count IV under the Dram Shop Act against tavern owners Anna, John, and Mary Huls.
- Defendant Kopmann filed a pre-trial motion to dismiss the complaint, arguing the alternative counts were fatally repugnant and inconsistent.
- The trial court denied Kopmann's motion to dismiss.
- The case proceeded to a jury trial, which found for the plaintiff against Kopmann on Count I for $15,500 and found the Huls not guilty on Count IV.
- The trial court denied Kopmann's post-trial motions for judgment notwithstanding the verdict and for a new trial.
- Kopmann, as appellant, appealed the judgment to the Illinois Appellate Court.
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Issue:
Does the Illinois Civil Practice Act permit a plaintiff, who is genuinely uncertain of the true facts surrounding a decedent's death, to plead inconsistent counts in the alternative against different defendants, one alleging the decedent's due care and the other alleging the decedent's intoxication caused the event?
Opinions:
Majority - Presiding Justice Reynolds
Yes. The Illinois Civil Practice Act expressly permits a plaintiff who is in genuine doubt as to what the facts are to plead inconsistent counts in the alternative. Section 43(2) of the Act allows parties to state facts in the alternative, regardless of consistency, when they are uncertain which statement is true. This policy promotes judicial economy by allowing controversies to be settled in a single action. Such alternative allegations are not binding judicial admissions that can be used to defeat the other count, as doing so would create a 'legal snare' and undermine the purpose of alternative pleading. The right to plead in the alternative is particularly justified when the key witness is deceased and the plaintiff cannot be expected to know the true facts before trial.
Concurring - Justice Roeth
Yes. The justice concurs in the result reached by the majority but does not agree with all of the language used in the opinion.
Analysis:
This case solidifies the modern procedural rule allowing inconsistent pleading in the alternative, prioritizing judicial efficiency over rigid, formalistic consistency. It establishes that a plaintiff facing uncertainty, particularly after the death of a key witness, does not have to prematurely 'gamble' on one version of the facts. The court's holding that alternative allegations are not binding admissions is critical, as it protects the pleader from having one claim used to auto-defeat another. This decision significantly aids plaintiffs in complex tort cases involving multiple potential tortfeasors and unclear factual scenarios, allowing them to proceed to discovery and trial to determine the truth.
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