McCormick v. Kopmann 161 N.E. 2d 720 (Ill. Ct. App. 1959) McCormick had drinks at Huls' bar.  McCormick left, drove drunk, ran into Kopmann's truck and died.  McCormick's wife sued both Kopmann and Huls. In the complaint, McCormick's wife alleged that the Kopmann's driving negligently caused the accident.  In another count, McCormick's wife alleged that Huls' serving of alcohol to McCormick caused McCormick to drive in a way that caused the accident. These claims were mutually exclusive.  To find Kopmann guilty you'd have to believe that McCormick was driving safely, but to find Huls guilty you have to believe that McCormick was driving drunk (contributory negligence). Kopmann and Huls both filed motions to dismiss because complaint contained contradictory allegations. Technically they filed a demurrer, aka Federal Rule 12(b)(6). The Trial Court denied the motion and proceeded with trial. The Trial Court found Kopmann at fault for the accident, and Huls not at fault. After the trial, Kopmann appealed on the basis that the case should have been dismissed based on his original motion. The Appellate Court affirmed. The Appellate Court found that a complaint can contain contradictory legal positions. In general, a complaint with contradictory or inconsistent legal positions can work. Obviously, a plaintiff won't be able to recover from both claims, but they should be allowed to move forward present to the jury the evidence. Plaintiff doesn't need to guess at which of two alternate theories might prevail at trial, they can pursue both.  Pleading to one is not to be treated as judicial admission on the other point.