Tulkoff, Myer S.

English

University of Kentucky

Kentucky Law JournalVolume 40 | Issue 1 Article 111951Alternative Pleading in KentuckyMyer S. TulkoffUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Civil Procedure CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationTulkoff, Myer S. (1951) "Alternative Pleading in Kentucky," Kentucky Law Journal: Vol. 40 : Iss. 1 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol40/iss1/11NoTES AND ConmnmrsALTERNATIVE PLEADING IN KENTUCKYPleading in the alternative occurs in two ways, either as to thesubject matter of the cause or defense, or as to the parties.1 At com-mon law, pleading in the alternative was not permissible. For examplean allegation that the defendant wrote and published, or caused to bewritten and published, a certain libel, was bad for uncertaintyHowever, alternative pleading is desirable because often thepleader cannot know nor reasonably be expected to know, which oftwo or more alternatives is the correct one. Especially is tbis trueas to the details of an injury or breach, which often are known onlyto the defendant m advance of trial. Thus, it is unfair to enforcestrictly the common law rule prohibiting pleading in the alternativeunless the common law rule permitting inconsistency in pleading isalso adopted.: Therefore the rule pernitting allegations in the alter-native is very desirable in any jurisdiction which, as does Kentucky,considers inconsistency a vice.3 Alternative pleading is permittedunder the Federal Rules 4 and in at least ten jurisdictions in the UnitedStates, including Kentucky - In several states it is permitted by judi-cial decision.0Kentucky however, has placed a limitation on alternative pleading,that of allowing pleading in the alternative as to facts or subject-matterbut not as to parties. Thus, the pleader cannot allege in the alternativethat one or the other of two defendants is liable.'CLANK, CODE PLEADLNG, 254 (2d ed. 1947).At common law pleading in the alternative was considered a defect in form,objectionable on special demurrer. However, if a party had a cause of action,but was not certain as to the most expedient way of stating it, the common lawpermitted a single cause of action to be differently stated in separate counts, inthe same declaration. However, under the Codes the use of inconsistent countsis either not pernissible, as in Kentucky (Post, note 3) or is not desirable becausesuch a practice is confusing and cumbersome.Ky. CODE CiV. PRAc. ANN., sec. 118 (Carroll's 1948).'Fed. R. Civ. P 8 (e) (2) (1948), as follows:"A party may set forth two or more statements of a claim alternatively orhypothetically, either in one count or defense or in separate counts or defenses.When two or more statements are made in the alternative and one of them ifmade independently would be sufficient, the pleading is not made insufficient bythe insufficiency of one or more of the alternative statements. A party may alsostate as many separate claims or defenses as he has regardless of consistency andwhether based on legal or on equitable grounds or on both."Aniz. CODE ANN., see. 21-408 (2) (19.39); COLO. STAT. ANN., Rule 8 (e)(2) (Michle 1935); CONN. PRAc. BK., P 30, sec. 88 (1934); ILL. ANN. STAT., ch.110, see. 167 (2) (Smith-Hurd); Ky. CODE CIv. PRAC. ANN., sec. 118 (Carroll's1948); MASS. GEN. LAN,:, c. 231, see. 37 (1932); Mo. REV. STAT. ANN., sec.847.42; N.J. Sup CT. Rule 53, Rule 37, Pr. Act 1912 (1938); N.M. STAT. ANN.,see. 19-101 (822) (1941); TFx. RULES CIV. PROC., Rule 48 (Vernon 1942).Supra, note 1, at 2,56, footnote 142.KENTUCKY LAW JOURNALIn Powell v Manufacturers Coal and Coke Company,7 is wasstated that:"The appellant filed is motion in the Pike Circuit Courtagainst the appellee and Lafe Stansbury and George Childers. Thesubstance of his allegations was that the defendants, the one or theother of them, but he did not know which, had taken from him cer-tain property exempt to him as a housekeeper of the aggregate valueof $324, and that he had demanded a return of the property, butthey had refused to retun it. A demurrer was interposed to thepetition and sustained by the court. The demurrer was properlysustained, as the petition does not allege who took the property fromappellant. The provisions of the Civil Code, see. 113, allow alterna-tive statements relating to the facts, but they do not allow alternativestatements relating to the parties. The appellant, therefore, may havealleged that the defendants were jointly liable to him, or he may havealleged that one or more of them was liable; but when he allegedthat one or the other of them was guilty of violating his propertyrights he made his petition bad."' (Italics writers).In Hartzell v Bank of Murray," it was alleged m a cross-petitionthat the defendant had turned over notes to the plaintiff bank forcollection to cover the note upon which it was suing. The balance wasto be returned to the defendant. It was alleged that either the bankor the cashier collected the notes, but that the defendant had no meansof knowing which. This was held msufficient to sustain a judgmentagainst either the bank or the executors of the cashier, under therule that a cause of action against one party or another is not goodagainst either.Having shown that pleading in the alternative in Kentucky ispermitted only as to facts or subject-matter but not as to parties, wewill focus our attention on the limited practice of alternative pleadingas it exists in this state.The pleader is not limited to the pleading of only two alternativefacts, two or more being allowable. In Lowsville & Nashville R. R.Co. v Wyatt's Admr.,10 the first error complained of by the ap-pellant was that the court failed to sustain its motion to compel theappellee to elect which of the several grounds of recovery set up inher petition and amended petition she would rely upon, and that theother grounds be stricken from the pleading. The court, after citingsubsection 4 of section 113 of the Code, stated:"The appellant contends that the Code does not provide orallow the statement in a pleading of more than two inconsistent acts,and as appellee stated more than two, therefore the court should230 Ky. 784, 20 S.X 2d 991 (1929).* Id. at 785, S.W at 991.* 211 Ky. 263, 277 S.W 270 (1925)." 29 Ky. L.R. 437 (1906).NoTEs AND ComtmxENTshave sustained its motion. We do not think this is a proper construe-tion of this provision of the Codes. If a party loses his life, and itis alleged that his death was caused by one or more of three differentacts of negligence, but did not know which in substance andeffect this would be proper pleading under the Code. There can beno good reason shown why this provision should be limited to twoinconsistent facts, and in our opinion it was not intended to be solimited.""Another requirement of alternative pleading is that regardlessof the number of alternatives, each of them must state a good causeof action. It will not suffice that one alternative states a good causeof action even if the other does not. In Hoffman v City of Maysville12the plaintiff was suing the City of Maysville because he was in-jured by falling through a sidewalk into a pool of hot water. Theoriginal petition stated a good cause of action against the city becauseit alleged that the drain was defective at a point under the side-walk, and that the plaintiff broke through and fell into the poolbeneath while lawfully using the highway, and that the municipalityknew, or by the exercise of ordinary diligence could have known,of the defective drain and the dangerous pool beneath the sidewalk.In either case, if the municipality knew or could have known of thedefect, the plaintiff would have stated a good cause of action. How-ever, the plaintiff alleged in an amendment to his original petitionthat the pool of hot water had accumulated either under the sidewalkor at a point within the private property of the company to whomthe City of Maysville had given permission to construct and main-tain a wooden box sewer under the sidewalk. The plamtiff statedtat one of these alternative allegations of fact was true, but he didnot know which. As stated by the court:"The rule is, that where facts are stated in the alternativewvith the allegation that one or the other is true, but the pleader doesnot know which is true, both of the alternative statements must pre-sent a cause of action. If one, even if true, fails to present a cause ofaction, the pleading is bad."The court cited the section of the Code with which we are con-cerned, and held that the lower court correctly sustained the generaldemurrer of the city to the amended petition. The alternative al-legation stating that the pool of hot water had accumulated at apoint within the private property of the company failed to state acause of action, since in such event, the city would not be liable foraccumulation of water upon premises it was under no duty to inspect." Id. at 440, 441.12:3 Ky. 707, 97 S.W .360 (1906).ld. at 710; S.W at 361.KENTucKY LAw JouRNALThe entire cause of action failed because of the defective alternativepleading. 14Analagous to the requirement that each alternative compaint orclaim must state a good cause of action, is the requirement thatwhere there are alternative defenses each must make out a defenseor both are bad. In Rogers v McAlister'5 the defendant Frank Rogerspurchased property at a delinquent tax sale. The auditor of thestate executed and delivered to Rogers a deed for the propertyPlamtiff, who claimed as a remamderman brought suit against Rogersto cancel the deed executed to hmi by the auditor alleging that it wasvoid for a number of reasons. Rogers filed an answer and anamended answer. The answer alleged that the tax delinquent heldthe property either in her own right or as an agent for Joseph Price,that he did not know which of these allegations was true. The courtstated that an allegation that the tax delinquent held the propertyas an agent was a bad defense, for reasons not here pertinent. Thus,the Kentucky Court of Appeals affirmed the sustaining of a demurrerto the entire defense."Where an answer contains alternative allegations eachalternative must present matter sufficient in law to constitute adefense to the action. If either of them fails to state facts sufficientto support the defense, the demurrer to it is properlv sustained."'The Code s permission for a plea of facts in the alternative doesnot extend to the pleader the license to plead causes of action m thealternative by stating that he does not know which is true. In an oldKentucky case,17 the plaintiff originally instituted an action on acontract for logs. The plaintiff subsequently amended his petitionas one in tort as well as contract, alleging that defendant convertedthe logs to his own use and further alleging that the statements asto the contract or tort were true, but that he did not know which wastrue. The Kentucky Court of Appeals stated:"A party must be presumed to know whether he is entitledto recover on a contract or upon a tort, and be is required to set uphis cause of action in definite form, and can not be allowed to prose-cute an action based upon a declaration showing the party eitherindebted on contract or m tort, accompamed by the statement thathe does not know wbich.'~n'4 In accord: Farmers Bank of West Lousville, Kentucky, and Holland Na-tional Bank of Holland, Indiana v. American Surety Co., of N.Y., 205 Ky. 177,265 S.W 505 (1924). Scobee v. Brent, Same v. Same, 185 Ky. 7.34, 216 S.W76 (1919).1-1151 Ky 488, 152 S.W 571 (1913).Id. at 490, S.W at 572.'7 Southern Lumber Co. v. Wireman, 19 Ky. L.R. 585 (1897).Id. at 587,NoTES AND COrMIrENTSAlternative pleading under the Federal Rules is more liberalthan under the Kentucky Code in several respects. Under the FederalRules one may join parties in the alternative whether plaintiffs ordefendants.'" However, the Kentucky cases have held, as we haveseen, that parties may not be joined in the alternative. Also underthe Federal Rules when clains or defenses are pleaded in the alterna-tive, the entire pleading will not fail just because one of the claimsdoes not present a good cause of action or one of the alternativedefenses a good defense.", On the other hand, in Kentucky all thealternative statements of fact must be sufficient or all the defensessufficient, and if one or more are insufficient, the rest though goodshall fail.-"In conclusion, it is submitted that the Kentucky Code should berevised so as to allow alternative pleading as to parties as well as tofacts. About twelve states and the Federal Rules already permitjoinder of plaintiffs in the alternative, and several allow joinder ofdefendants in the alternative. This sort of joinder is a highly desirablereforn as it permits the settlement of an entire dispute in a singleaction and avoids the difficulties and possible injustice resulting fromthe necessity of bringing separate suits.22It is true that cases have made a distinction between pleadingin the alternative as to parties and pleading in the alternative as tosubject matter or facts, but it is difficult to see a difference in prin-ciple between these examples of alternative pleading, the differencebeing entirely historical. Even in England today parties plaintiff maybe joined in the alternative. 23It is necessary however, to point out a limitation upon alternativepleading of parties for which the Federal Rules does not provide. Thislimitation is that the pleader, after stating in the alternative that one"FED. R. Civ. P., 20 (a), as follows:"Permissive Joinder. All persons may join in one action as plaintiffs if theyassert any right to relief jointly, severally, or in the alternative in respect of orarising out of the same transaction, occurrence, or series of transactions or occur-rences and if any question of law.or fact common to all of them will arise in theaction. All persons may be joined in one action as defendents if there is assertedaganst them jointly, severally, or in the alternative any right to relief in respectof or arising out of the same transaction, occurrence, or series of transactions oroccurrences and if any question of law or fact common to all of them will arisein the action. A plaintiff or defendant need rot be interested in obtaimng or de-fending against all the relief demanded. judgment may be given for one or moreof the plaintiffs according to their respective rights to relief, and against one ormore defendants according to their respective liabilities. (Italics writer s).I'Supra, note 4."' Supra. note 3.'CLARK, op. cit. supra note 1 at 393. Also see, supra note 19.- Hankin, Alternative and Hypothetical Pleading. 33 YALE LAW JOURNAL,365, :370 (1923-4).KENTUCKY LAW JOURNALor the other party is liable should add; "but (the pleader) does notknow which." At this point the Federal Rule is too lax and it wouldbe well to require the pleader to make a statement that his pleadingis not sham, but that he actually does not know which defendant isliable. The Federal Rules should adopt this limitation also inconnection with alternative pleading of facts. Kentucky has sucha limitation.Another suggested reform is that an entire cause of action ordefense alternatively pleaded should not be held bad merely becauseone of the alternatives is insufficient m itself to state a cause of actionor defense. The suggested change, with the limitations stated, fol-lows the practice under the Federal Rules, '2 4 and seems to be a goodone. If neither alternative states a cause of action, the entire pleadingwill fall before a demurrer. If one of the alternatives is so deficient,it may be eliminated by a motion to strike, thus still leaving a goodcount on which issue may be joined.Gregory Hankin very aptly stated in an article entitled Alternativeand Hypothetical Pleading:25"The relaxation of the rule against alternative pleadingshas in no way injured our legal system. On the contrary, it is bene-fitting our procedure in that it eliminates many useless battles whichconsu;me the time of the courts delaying suits and heaping expenses onlitigants. The reform with reference to this problem is not vet com-plete, for if we once realize that a disjunction does not necessarilyimply uncertainty, then there is no reason for sustaining a greatervanety of objections to alternative pleading than to any other plead-ingsMYER S. TULKOFF' Supra, note 4.Supra, note 23.Id. at 376,

Alternative Pleading in Kentucky

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=3727&amp;context=klj

Alternative Pleading in Kentucky

Abstract

Similar works

Full text

Available Versions

University of Kentucky