McCormick v. Kopmann

161 N.E.2d 720 (1959)

Quick Summary

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Lewis McCormick (deceased) was represented by Lucy Alice McCormick (plaintiff) in a case against Lorence Kopmann (defendant) after a fatal car accident. The plaintiff made two alternate claims: one for negligent driving against Kopmann and another against tavern operators for serving alcohol leading to intoxication.

The issue revolved around the permissibility of inconsistent pleadings and whether they serve as judicial admissions. The court concluded that alternative pleading is allowed when factual certainty is lacking, and upheld the jury’s verdict favoring the plaintiff on the negligence claim while dismissing the intoxication claim.

Facts of the Case

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Lewis McCormick (deceased) was involved in a fatal car accident with a truck driven by Lorence Kopmann (defendant). Lucy Alice McCormick (plaintiff), the widow of Lewis McCormick, initiated a lawsuit against Kopmann and the Huls, who operated the taverns where Lewis had been drinking prior to the accident.

The plaintiff’s lawsuit comprised two alternative claims: one against Kopmann for negligent driving, which required Lewis McCormick to be free from contributory negligence, and another against the Huls for serving alcohol to Lewis McCormick, leading to his intoxication and subsequent involvement in the accident.

The case presented a unique legal dilemma as it involved two mutually exclusive claims: one predicated on the defendant’s negligence and the other on the decedent’s contributory negligence through intoxication. This duality of claims raised significant questions about the permissibility of pleading inconsistent theories in a single lawsuit.

Procedural Posture and History

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  1. Lewis McCormick died in a car accident and his widow filed a lawsuit against Lorence Kopmann and the Huls.
  2. The lawsuit alleged two separate claims based on different theories of liability.
  3. Kopmann moved to dismiss the complaint, arguing that the claims were mutually exclusive.
  4. The trial court denied the motion to dismiss.
  5. The case went to trial, and a verdict was returned against Kopmann.
  6. Kopmann appealed the decision to the Illinois Appellate Court.

I.R.A.C. Format


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  • Whether a plaintiff can plead two mutually exclusive claims in one lawsuit when they are based on different theories of liability.
  • Whether such alternative pleading constitutes binding judicial admissions against the plaintiff.

Rule of Law

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Illinois law permits alternative pleading, allowing a party unsure of the true facts to plead in the alternative and leave it to the jury to determine which, if any, of the defendants is liable. The Civil Practice Act expressly allows for inconsistent counts to be pleaded together as long as there is genuine uncertainty regarding the facts. Furthermore, voluntary intoxication does not excuse an individual from exercising reasonable care.

Reasoning and Analysis

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The appellate court examined whether the plaintiff could simultaneously pursue claims under both the Wrongful Death Act and the Dram Shop Act. The court determined that while the claims contained contradictory allegations, this did not preclude them from being pleaded together, as Illinois law permits such alternative pleading when there is genuine doubt about which set of facts is true.

The court also addressed whether allegations in one count could be considered binding judicial admissions in another count, concluding that alternative allegations made in good faith are not admissions against interest and thus not conclusively binding.

In assessing whether the trial court erred in denying a directed verdict for Kopmann, it was found that there was sufficient evidence to support the plaintiff’s claim of negligence against Kopmann. The jury was properly instructed on considering each claim independently and based their verdict on evidence presented that supported the plaintiff’s claim under Count I, while finding no liability under Count IV.


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The appellate court affirmed the trial court’s decision, allowing the alternative pleading and supporting the jury’s verdict in favor of the plaintiff against Kopmann under Count I.

Key Takeaways

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  1. Alternative pleading is permissible under Illinois law when there is genuine doubt about factual circumstances.
  2. Inconsistent allegations in alternative pleadings do not constitute binding judicial admissions.
  3. A plaintiff is not required to elect between alternative counts before submission to the jury if each count is separately viable based on presented evidence.

Relevant FAQs of this case

Can a plaintiff in a civil action plead contradictory causes of action based on different factual scenarios?

A plaintiff can plead contradictory causes of action when there is genuine uncertainty about the underlying facts. This approach allows the jury to determine the facts and decide on the appropriate cause of action.

  • For example: A car accident victim may sue both the other driver for negligence and the municipality for improper road maintenance, even though these claims suggest differing causes for the accident.

Does an alternative pleading in one count of a lawsuit comprise a judicial admission that negates claims in another count?

Alternative pleading does not equate to a judicial admission that nullifies other claims. Allegations made alternatively under genuine uncertainty are not considered conclusive against the pleader.

  • For example: In an employment dispute, a worker could allege breach of contract and, alternatively, unjust enrichment without admitting legally conclusive facts against either claim.

How does voluntary intoxication affect claims of negligence and contributory negligence in tort cases?

Voluntary intoxication does not absolve a party from acting with reasonable care, but it may be considered by the court or jury when evaluating contributory negligence or recklessness in tort cases.

  • For example: If a person drinks voluntarily and then trips on an unsafe staircase, their intoxication may be factored into their contributory negligence but does not excuse the property owner’s failure to maintain a safe environment.


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