University of the Philippines College of Law

MSI 2D

Topic Cause of Action > Alternative Cause of Action

Case No. 161 N.E. 2d 720 (Ill. App. Ct. 1959) / Illinois Appellate Court
Case Name McCormick v. Kopmann
Ponente Reynolds, J.

RELEVANT FACTS
 On November 21, 1956, Lewis McCormick was killed in a car accident involving his car and a truck driven by Lorence Kopmann
(defendant).
 McCormick’s widow (plaintiff) sued Kopmann and three other defendants, alleging two alternate claims.
o First claim against Kopman (under the Illinois Wrongful Death Act): was against Kopmann, alleging that he
negligently operated his vehicle, causing McCormick’s death. Specifically, it was alleged that Kopmann negligently
drove his truck across the center-line and collided with McCormick’s car. To recover under this claim, McCormick
had to be free of any contributory negligence.
o Second alternative claim against three other defendants (under the Illinois Dram Shop Act): In the alternative, this
claim was against Anna, John, and Mary Huls, who operated the two taverns where McCormick was drinking before
the car accident. Mrs. McCormick alleged that the Huls allowed Lewis McCormick to drink to excess and become
intoxicated, and as a result of this intoxication, McCormick was involved in the accident that killed him.
 Kopmann moved to dismiss the complaint, arguing that the two claims were mutually exclusive and therefore could not stand
together; he argued that the contradictions between the two claims were fatal. The motion was denied, and the case went
to trial.
o He theorized that because McCormick could not be free from contributory negligence as alleged in the first claim if
his intoxication caused the accident as alleged in the second claim.
o He also argued that the allegation in the second claim that McCormick's intoxication was the proximate cause of his
death, is a binding judicial admission which precludes an action under the Wrongful Death Act.
 At trial, conflicting evidence was presented regarding McCormick’s sobriety on the night of the accident.
 The jury returned a verdict against Kopmann, and he appealed, contending that his motion to dismiss was improperly denied.

ISSUE AND RATIO DECIDENDI

Issue Ratio
W/N contradicting allegations YES, a complaint may contain inconsistent allegations, even though the proof of one
can be pleaded simultaneously negates any fault on the foundation of the other.

 Plaintiff had the right to go to trial on both counts and to adduce all the proof
she had under both counts. However, she could not recover on both counts
simultaneously, since the two counts are mutually exclusive.
 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.
o Section 34 of the Act states in part that "Relief, whether based on
one or more counts, may be asked in the alternative."
o Section 43(2) of the Act provides: "When a party is in doubt as to
which of two or more statements of fact is true, he may, regardless
of consistency, state them in the alternative or hypothetically in the
same or different counts or defenses, whether legal or equitable. A
bad alternative does not affect a good one."
o The theory is that on the trial the proof will determine on which set
of facts, if any, the plaintiff is entitled to recover. Where the pleading
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is in the alternative in different counts, each count stands alone and

the inconsistent statements contained in a count cannot be used to
contradict statements in another count. The intent of the cited
section of the Practice Act is that counts can be pleaded in the
alternative regardless of consistency.
 Nonetheless, alternative pleading is not permitted when the pleader knows
which of the inconsistent statements are true and which are false.
o In this case, there is nothing that indicates that the plaintiff knows
that the averments in either court were true. The key witness here
to the accident is dead; as such, pleading alternative sets of facts is
often the only feasible way to determine what happened.

[Evidence-related issue] NO
 The rule in the majority of jurisdictions is that the admissions made by a
W/n the allegations in the pleader in one count or plea are not admissible against him on an issue raised
second claim regarding by his denials or averments made in another count or plea. In other words,
McCormick's intoxication where inconsistent counts or defenses are pleaded, the admissions in one of
constitute binding judicial them cannot be used to destroy the effect of the other.
admissions  Alternative fact allegations made in good faith and based on genuine doubt
are not admissions against interest so as to be admissible in evidence against
the pleader. The pleader states the facts in the alternative because he is
uncertain as to the true facts. Therefore, he is not "admitting" anything other
than his uncertainty. An essential objective of alternative pleading is to relieve
the pleader of the necessity and therefore the risk of making a binding choice,
which is no more than to say that he is relieved of making an admission.
 In this case, the court is of the opinion that plaintiff's evidence did not
contradict the position she took in the first claim, viz., that McCormick
exercised due care for his own safety. Plaintiff proved only that McCormick
drank two or three bottles of beer prior to the accident. Yet Lowe, who was
with McCormick during the entire time from late afternoon until his death,
testified during plaintiff's case in chief that McCormick was sober at the time
of the accident. Moreover, even if plaintiff made out a prima facie case of
McCormick's intoxication for purposes of the Dram Shop Act, she made no
showing of a causal connection between the intoxication and the accident.
This is a necessary element of plaintiff's case under the second claim.
 Plaintiff pleaded alternative counts because she was uncertain as to what the
true facts were. Even assuming she introduced proof to support all essential
allegations of both claims, she was entitled to have all the evidence submitted
to the trier of fact, and to have the jury decide where the truth lay.

 In summation, this court affirmed the ruling of the lower court. It held:
o (1) in the absence of a severance, the widow had the right to go to
trial on both of the counts, and to adduce all the proof she had under
both counts
o (2) alternative fact allegations made in good faith and based on
genuine doubt were not admissions against interest so as to be
admissible in evidence against the pleader
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o (3) the widow was not foreclosed ipso facto from going to the jury
under alternative counts of a complaint even though the proofs
adduced for each count were inconsistent with each other
o (4) the widow was not required to elect her remedy and choose
between the alternative counts before requesting that they be
submitted to the jury.

RULING

We conclude that the verdict and judgment below are correct and the judgment is affirmed.

Judgment affirmed.

SEPARATE OPINIONS

NOTES