In its amended complaint Fredonia asserted three different theories of relief: fraud, breach of contract, and breach of warranty. Of course, under Rule 8(e), Fed.R.Civ.P., Fredonia may state as many claims as it has, regardless of their consistency. See Wright Miller, Federal Practice and Procedure: Civil § 1283, pp. 373-375; Pulliam v. Gulf Lumber Co., 5 Cir., 1963, 312 F.2d 505, 507; and Breeding v. Massey, 8 Cir., 1967, 378 F.2d 171, 178. Fredonia also raised repudiation of the contract in the pre-trial order.
Although Banco Continental's allegations that the negligence of both Pan American and Braniff caused the loss may appear inconsistent if appellant eventually relies on the doctrine of res ipsa loquitur, such an inconsistency in pleading is authorized by the language of Rule 8, supra, and an inconsistency "may lie either in the statement of the facts or in the legal theories adopted, and the party will not be required to elect upon which legal theory he will proceed, since this would defeat the whole purpose of allowing inconsistent pleading." 2A Moore, Federal Practice ¶ 8.32, pp. 1889, 1890 (2d ed.); Pulliam v. Gulf Lumber Company, 5 Cir., 1963, 312 F.2d 505, 507; Citizens Southern Nat. Bank v. American Surety Co. of N.Y., 5 Cir., 1965, 347 F.2d 18, 23; Campbell v. Barnett, 10 Cir., 1965, 351 F.2d 342, 344. Although a party "is not at liberty to set forth variant statements of his claim or defense unless he is honestly in doubt as to what the evidence will show * *. Rule 8(e)(2) makes it clear that the requirement of honesty in pleading does not force a party to select a single theory to the exclusion of all others if he is not sure of the basis for recovery or defense."
But Evans argues that if Mississippi law applies, its savings statute saves claims dismissed for "matter of form," which purportedly includes claims dismissed for lack of personal jurisdiction. Opening Br. 10, n.3 (citing Pulliam v. Gulf Lumber Co., 312 F.2d 505, 510 (5th Cir. 1963)). If Evans is correct, his action would not be time-barred under Mississippi law.
So long as it is not "conceded or established" that a requested remedy is unavailable, a "district court err[s] in requiring the plaintiff to elect" which remedy he or she pursues. See Pulliam v. Gulf Lumber Co., 312 F.2d 505, 507 (5th Cir. 1963). This is not surprising, for the Federal Rules of Civil Procedure allow plaintiffs to plead alternative-even inconsistent-theories of recovery.
See generally, the cases and discussion, Reporter's Notes, § 143, Restatement (Second) of Conflicts of Laws, supra. This Circuit has recognized the exception to the general rule in Gaston v. B.F. Walker, Inc., supra (construing Texas law); Pulliam v. Gulf Lumber Company, 5 Cir., 1963, 312 F.2d 505 (construing Mississippi law); Kozan v. Comstock, 5 Cir., 1959, 270 F.2d 839 (construing Louisiana law); Page v. Cameron Iron Works, Inc., 5 Cir., 1958, 259 F.2d 420, rev'g. S.D.Tex., 1957, 155 F. Supp. 283 (construing Louisiana law); and Ford, Bacon Davis v. Volentine, 5 Cir., 1933, 64 F.2d 800 (construing Mississippi law).
We appreciate the hazard involved in deciding cases of this nature. As recently as 1963, the Fifth Circuit held in Pulliam v. Gulf Lumber Company, 312 F.2d 505, that the Alabama one year statute on actions for workmen's compensation was an ordinary statute of limitation, applicable to the remedy rather than the right. We reversed the District Court (in Mississippi) which had held to the contrary.
"The right of a plaintiff to try his case on alternate theories has uniformly been unheld in the federal courts and plaintiff cannot be required to elect upon which theory to proceed. Campbell v. Barnett, 10 Cir., 351 F.2d 342, 344; Pulliam v. Gulf Lumber Co., 5 Cir., 312 F.2d 505, 507; Herlihy Mid-Continent Co. v. Bay City, 6 Cir., 293 F.2d 383, 385; see 2A Moore's Federal Practice ¶ 8.31[2]."
The right of a plaintiff to try his case on alternate theories has uniformly been upheld in the federal courts and plaintiff cannot be required to elect upon which theory to proceed. Campbell v. Barnett, 10 Cir., 351 F.2d 342, 344; Pulliam v. Gulf Lumber Co., 5 Cir., 312 F.2d 505, 507; Herlihy Mid-Continent Co. v. Bay City, 6 Cir., 293 F.2d 383, 385; see 2A Moore's Federal Practice ¶ 8.31 [2].
These inconsistent assertions embody Plaintiffs' right to assert mutually exclusive claims so as to preserve the possibility of recovery under different policy provisions. See, e.g.,Pulliam v. Gulf Lumber Co., 312 F.2d 505, 507 (5th Cir. 1963) (holding the trial judge erroneously forced the plaintiff to elect between a claim under the state workman's compensation act and one based on common law negligence); Laurence v. Atzenhoffer Chevrolet, 281 F. Supp. 2d 898, 900 (S.D. Tex. 2003) (Rainey, J.) ("Until an action has actually reached the point of entering a judgment, Rule 8 allows a plaintiff to explore alternative, mutually exclusive theories.").
Two of the seven justices, including the one who wrote the original opinion reversing the case because of the allowance of the amendment, dissented. In Pulliam v. Gulf Lumber Company, 5 Cir., 312 F.2d 505, Judge Rives, speaking for the court, in analyzing the opinions in Ellenburg said: "It was thus held that the one year statute is no more than a statute of limitations to be construed in connection with other statutes relating to the limitation of actions, and that it was permissible to amend a complaint claiming damages under the Federal Employers' Liability Act so as to strike out that claim and claim compensation under the Workmen's Compensation Act of Alabama by an amendment filed more than three years after the occurrence of the accident.