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 23 Ill. App. 2d 189 (3rd Dis. 1959).

  Lewis McCormick (McCormick) was killed in auto accident

with a truck operated by Kopmann (Defendant). McCormickǯs wife (Plaintiff) sued
Kopmann and Huls (Defendants), the owners of the bar where McCormick had
drunk beer before the accident. Two counts in Plaintiffǯs complaint were alternative
pleadings. Defendants moved for a directed verdict, but the motion was denied.
Kopmann appealed.

Synopsis of Rule of Law. A complaint may contain inconsistent allegations, even

though the proof of one negates any fault on the foundation of the other.

Facts. McCormick was killed when a truck operated by Kopmann collided with his
car. Plaintiff sued the operator of the car and the Huls, the owners of the bar where
McCormick had beer before the accident. Count one of Plaintiffǯs complaint alleged
that Kopmann, negligently drove his truck across the center-line and collided with
McCormickǯs car. Count four, brought in the alternative to count one, under the
Illinois Dram Shop Act alleged that the Huls, sold alcoholic beverages to McCormick,
which rendered him intoxicated. As a result of the intoxication, he drove his car in
such a manner as to cause a collision with Kopmannǯs truck. Kopmann moved to
dismiss the complaint on the grounds that the contradictions between count one
and count four were fatal. The trial court denied his motion and the jury returned a
verdict against Kopmann for $15,500 under count one and for the Huls under count
four. Kopmann appealed.

Issue. Whether inconsistent allegations can be pleaded simultaneously?

. Yes. Judgment is affirmed. Plaintiff had the right to go to trial on both counts
and to determine all the proof she had under both counts. Claims may be made in
the alternative regardless of consistency.

Plaintiff could not recover on both counts simultaneously, since the two counts are
mutually exclusive. However, 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. Nonetheless, alternative pleading is not permitted when the pleader
knows which of the inconsistent statements are true and which are false. Here, there
is nothing that indicates the Plaintiff know that the averments in either court were
true. The key witness here to the accident is dead, therefore, pleading alternative
sets of facts is often the only feasible way to determine what happened.

Discussion. Rule 8(d) of the Federal Rules of Civil Procedure allows a Plaintiff to
plead alternative allegations. The pleader is also permitted to plead inconsistent
versions of the facts. The purpose in allowing plaintiffs to plead in the alternative is
to ensure that controversies may be settled and justice is accomplished.
Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of
Pennsylvania
 103 F.3d 294 (3rd Cir. 1996).

Brief Fact Summary. Zuk (Plaintiff) alleged that Eastern Pennsylvania Psychiatric
Institute of the Medical College of Pennsylvania (Defendant) was infringing on
Plaintiffǯs copyrights by selling videos that he made while working for them.
Defendant moved for dismissal and sanctions under Rule 11 of the Federal Rules of
Civil Procedure on the grounds that Plaintiff had failed to conduct an inquiry into
the facts and the law. Plaintiffǯs attorney, Lipman (Appellant) appeals from an order
imposing sanctions against him in the sum of $15,000 and Defendantǯs counsel fees.

Synopsis of Rule of Law. Rule 11 sanctions are proper when counsel fails to make an
adequate inquiry into both the facts and the law, which is reasonable under the
circumstances.

Facts. Plaintiff, a psychologist on the Defendantǯs faculty, taped two of his therapy
sessions. Defendant made them available for rental through its library. Plaintiff also
wrote a book, containing transcripts of the therapy sessions. In 1975, Plaintiff
registered the book with the United States Copyright Office. Five years later, Plaintiff
requested that all copies of the films be returned to him, but Defendant ignored the
request. In 1995, Appellant filed suit on Plaintiffǯs behalf alleged that Defendant was
renting out the films and thereby infringed his copyright. Defendant moved for
dismissal under Rule 12(b), and mailed a notice to Appellant of its intention to move
for sanctions under Rule 11 on grounds that Appellant filed to conduct an inquiry
into the facts and law. The district court granted the Motion to Dismiss and found
that the copyright of the book afforded protection to the films. It also found that
Defendantǯs use thereof was not infringement, and that Plaintiffǯs claim was barred
by the statute of limitations. The court subsequently entered an order for attorneyǯs
fees and sanctions against Plaintiff and Appellant, who are joint and severally liable
to the Defendant for counsel fees in the amount of $15,000. Plaintiff settled his
liability with the Defendant in the amount of $6,250, leaving the appellant liable for
$8,750. Appellants appealed.

Issue. Were sanctions under 28 U.S.C.A. Section: 1927 and Rule 11 proper?