Civil Procedure

McCormick v. Kopmann
CHAPTER 3: Describing and Defining the Dispute
B. Describing and Testing the Plaintiffs Claim
2. Consistency ad Honesty in Pleading
A. Inconsistent Allegations
NAME:

FACTS:

McCormick v. Kopmann, 23 Ill.App.2d 189, 161 N.E.2d 720, App. Court of Illinois,
Third District, 1959
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PROCEDURE:

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(McCormick, wife of deceased driver) v. (Kopmann, truck driver), (Huls,

tavern owners)
killed upon collision with Kopmanns truck, also drank at Huls tavern
before accident
claims:
Count I: Illinois Wrongful Death Act Kopmann negligently drove truck
across center line, was in the exercise of ordinary care for his own
safety
Count IV (brought in the alternative): Illinois Dram Shop Act Huls
supplied alcohol, rendered intoxicated and collision was result of such
intoxication
Kopmann MTD complaint re: contradictions between Count ! and IV; trial
court denied
Conflicting testimony on who drove over center line, testimony McCormick
drank several beers
s (Kopmann, Huls) motions for directed verdict denied
Verdict against Kopmann for $15,500 under Count I; for (in favor) of the Huls
under Count IV
Kopmann appeals alleging trial court erred in pretrial MTD re: inconsistent
allegations

ISSUE:

Substantive Issue(s):
1. Can plead on alternative counts, regardless of consistency, in the same
action?
a. Are Counts I and IV inconsistent with each other?

HOLDING:

Yes.

REASONING:

Rule: (Ill. Wrongful Death) Freedom from contributory negligence is prereq to

recovery under WDA.
o couldve been contributorily negligent if intoxicated; voluntary intoxication
will not excuse a person from exercising such care expected from one who
is sober (Ill. S.C. Keeshan v. Elgin)
o Makes Count IV hard to reconcile with Count I mutually exclusive counts
thus not allowed to recover on both counts
Rule: (F.R.Civ.P. 8(d)(2)) Alternative Statements of a Claim or Defense pleading
is sufficient if any one of [counts] is sufficient; claims can be made regardless of
consistency; each count stands alone

Civil Procedure

DISPOSITION:

NOTES:

Counts can be pleaded together

Alternative pleading allowed so issues settled and accomplished in a single

action, only if pleader no knowledge of true facts; alt. pleading not
permitted if pleader knows nature of things must determine fact and
strike inconsistent allegation from pleading on remand
Key witness is deceased, pleading alternatives only feasible way to
proceed, has right to adduce all the proof she has under both counts
Jury is the trier of fact and either of two s could be liable; need not

Affirmed judgment and verdict.

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Motion for directed verdict: made before case is submitted to jury; no

reasonable jury could find for opposing party
Averments: affirmation or allegation
Seriatim: taking one subject after another in regular order, point by point
Laches: unreasonable delay in making assertion or claim, sleeping on rights

Verifying pleadings when lacks personal knowledge/prevent sham pleadings?

Make allegations on information and belief, pleader is not claiming personal
knowledge as to matters although they are believed to be true; lawyers signature
on complaint to show justified (Fed. R. Civ. P. 11(a))
Prompt filing encouraged and required by SOL, laches, need to preserve evidence,
etc. Does not require complaints to be verified (Fed. R. Civ. P. 11(a)) and allow for
pleadings in the alternative (so party can preserve its options) useful in product
liability cases; this is allowed because pleadings precede discovery and trial,
evidence will show