## Facts

- Lewis Harold McCormick died when his car collided with a truck driven by Lorence J. Kopmann on Main Street in Gifford, Illinois.
- The decedent’s widow, individually and as administratrix, sued Kopmann and separate tavern owners (the Huls defendants).
- Count I (wrongful death against Kopmann) alleged Kopmann negligently crossed the center line and struck the decedent’s car, and alleged the decedent exercised ordinary care for his own safety.
- Count IV (dram shop against the Huls defendants), pleaded “in the alternative” to Count I, alleged the Huls sold alcohol to the decedent, that he became intoxicated, and that the intoxication caused him to drive in a manner leading to the collision.
- Evidence at trial conflicted on whether Kopmann crossed the center line and on whether the decedent was intoxicated at the time of the crash.
- The jury found against Kopmann on the wrongful-death count and for the Huls defendants on the dram-shop count; the trial court entered judgment and denied Kopmann’s post-trial motions.
- Kopmann appealed, arguing the complaint’s inconsistent theories were impermissible and prejudicial and that the dram-shop allegations barred recovery against him.

## Issues

1. Whether a plaintiff may plead mutually inconsistent factual theories in separate counts, expressly in the alternative, within a single complaint.
2. Whether allegations in an alternative dram-shop count (intoxication causing the collision) are binding judicial admissions that defeat a negligence/wrongful-death count alleging due care.
3. Whether the plaintiff must elect between inconsistent counts before trial or before submission to the jury.
4. Whether trying and submitting the alternative counts together, without severance, unfairly prejudiced the truck-driver defendant.
5. Whether the evidence and asserted trial errors required reversal.

## Decision

- The appellate court affirmed the judgment against Kopmann and the judgment in favor of the Huls defendants.
- The court held Illinois pleading rules permitted alternative and inconsistent pleading, including mutually exclusive factual theories.
- The intoxication allegations in the alternative dram-shop count were not treated as binding judicial admissions that barred the wrongful-death negligence claim against Kopmann.
- The plaintiff was not required to elect between the inconsistent counts before trial or before the case went to the jury; the plaintiff could present evidence on both theories but could not obtain double recovery.
- The court found no reversible prejudice from trying the counts together and concluded the evidence supported submitting the wrongful-death count to the jury; claimed trial errors did not warrant reversal.

## Legal Principles

- A plaintiff may plead alternative and even inconsistent factual theories in separate counts when permitted by the governing civil practice rules, including where proof of one theory would negate the factual basis of the other.
- Allegations made in an alternative count, directed at different defendants and expressly pleaded in the alternative, do not automatically operate as binding judicial admissions that conclusively defeat another count in the same pleading.
- A party may proceed to trial on inconsistent alternative counts when the pleader lacks certainty about the true facts (including where a key witness is deceased), so long as recovery is not had on mutually exclusive theories.
- Joint submission of alternative counts is not reversible error absent a showing of unfair prejudice or jury confusion.

## Conclusion

The court sustained a verdict on a wrongful-death negligence claim against a truck driver even though the complaint also pleaded, in the alternative, a dram-shop theory that the decedent’s intoxication caused the collision, ruling that alternative inconsistent pleading was permissible and that such alternative allegations did not conclusively bar the negligence claim.


McCormick v. Kopmann, 23 Ill. App. 2d 189, 161 N.E.2d 720 (Ill. App. Ct. 1959)