author: JUSTICE GOLDENHERSH

text:
    (No. 57740.
    CARDUNAL SAVINGS & LOAN ASSOCIATION, Appellee, v. GEORGE B. KRAMER, Sheriff, et al., Appellants.

      Opinion filed January 20, 1984.

      Robert J. Morrow, State’s Attorney, of Geneva (David R. Akemann, Assistant State’s Attorney, of counsel), for appellants.
    Loren S. Golden, of Schwartz & Golden, Ltd., of West Dundee, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants George B. Kramer and Robert D. Critton, respectively the sheriff and treasurer of Kane County, appealed (Rule 302(a), 87 Ill. 2d R. 302(a)) from the judgment of the circuit court of Kane County holding unconstitutional a portion of section 19 of “An Act in relation to the compensation of Sheriffs, Coroners, County Treasurers, County Clerks, Recorders and Auditors with their necessary clerk hire, stationery, fuel and other expenses, in counties of less than 1,000,000 inhabitants” (Ill. Rev. Stat. 1979, ch. 53, par. 37), and plaintiff, Cardunal Savings & Loan Association, cross-appealed. In its complaint, as amended, plaintiff alleged that on and after the effective date of article VII, section 9(a), of the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 9(a)), under the authority of section 19, defendant sheriff collected illegal commissions from judicial sales and paid them over to the defendant treasurer. Plaintiff sought certification as a class action, the enjoining of defendants from further collection of the illegal fees, an accounting of all such fees, the establishment of a segregated fund for fees collected, and reasonable attorneys’ fees. In pertinent part section 19 provided:

“In addition to the above fees there shall be allowed to the sheriffs in counties of the first and second class, a commission of 3% on all sales of real and personal property, which shall be made by virtue of any judgment of a court, where the money arising from such sales does not exceed $1000. In all cases where the amount of such sale exceeds that sum, then H/Wo commission on the excess only shall be allowed. On any sale of real estate which is made by virtue of any judgment of a court, such commission shall not exceed $400. However, in all cases where the judgment is settled by the parties replevied, stopped by injunction or paid, or where the property levied upon is not actually sold, the sheriff shall be allowed the fee for levying and mileage, together with half the commission on all money collected by him or her which he or she would be entitled to if the same were made by sale in the enforcement of a judgment; except the necessary expenses for keeping personal property, to be ascertained and allowed by the court which entered the judgment.” (Ill. Rev. Stat. 1979, ch. 53, par. 37.)

Effective January 1, 1982, section 19 was amended to provide:

“In addition to the above fees there shall be allowed to the sheriff a fee of $600 for the sale of real estate which shall be made by virtue of any execution or any judgment of a court.” Ill. Rev. Stat. 1981, ch. 53, par. 37.

Article VII, section 9(a), of the Constitution of 1970 provided:

“(a) Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.” Ill. Const. 1970, art. VII, sec. 9(a).

The parties stipulated that on or about October 6, 1981, the defendant sheriff conducted a sale of real estate pursuant to a judgment for foreclosure and sale, and issued a certificate of sale to plaintiff. Plaintiff paid the defendant sheriff a commission in the amount of $600 which was paid over to defendant treasurer. It was further stipulated that between September 1, 1981, and December 31, 1981, a number of sales were conducted by the defendant sheriff, and fees based on the amendment to section 19 were collected and paid over to the defendant treasurer. The reports of sale were approved by the court and none of the parties who paid the fees were reimbursed by means of redemption of the property foreclosed. Some of the fees in question were charged on the basis of the statutory provision prior to its amendment, and some fees were charged on the basis of its provisions subsequent to its amendment.

The court found that the plaintiff class was so numerous that joinder of all members was impractical, that there were questions of fact or law common to the class, and that a class action was an appropriate method for the fair and efficient adjudication of the controversy. It certified as the plaintiff class those persons who paid fees to the sheriff on or after the effective date of article VII, section 9(a), of the 1970 Illinois Constitution for sales of real estate conducted by the sheriff of Kane County pursuant to judgments for foreclosure of said real estate.

It found unconstitutional that portion of section 19 of the Act which was in force and effect from the enactment of the 1970 Illinois Constitution through December 31, 1981, and held “that because of the unconstitutionality of the above referred to section, the Court therefore lacked jurisdiction to approve the above fees paid to the sheriff for services in the sale of the real estate under the various decrees of foreclosure pertaining to each of the persons in the plaintiff class.”

The court also found that for the period from September 1, 1981, through December 31, 1981, the defendant sheriff unlawfully charged $600 fees of persons and held that the fees were unlawful because they were based upon a statute which did not become effective until January 1, 1982.

It ordered that the total sum of the fees paid to the sheriff be paid to plaintiffs’ attorneys, directed them to withhold attorney fees and expenses and disburse the remainder to the members of the plaintiff class. It denied plaintiffs’ motion to expand the classes of plaintiffs and defendants to include as plaintiffs all who had paid the illegal fees to any sheriff of a county of the “first or second” class as defined in the statutes and to include as defendants those sheriffs and treasurers who accepted those fees. Defendants appealed and plaintiff cross-appealed. 87 Ill. 2d R. 302(a).

There is no question that under DeBruyn v. Elrod (1981), 84 Ill. 2d 128, the fee provision here involved is invalid. Defendants, citing Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, contend, however, that this action to recover the fees is an impermissible collateral attack on final judgments of the circuit court. In Johnston, plaintiffs sought to recover fines paid under an ordinance which, subsequent to the payment of the fines, was held to be unconstitutional. This court held that a court which had jurisdiction over the parties and subject matter at the prior proceedings at which the fines were assessed “is empowered to make either a correct or an erroneous decision and the fact that the statute or ordinance upon which the decision is based was void does not serve to deprive it of jurisdiction. See Annot. 167 A.L.R. 517, 533 (1947).” (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 112.) Defendants argue that the courts which approved the foreclosure sales had jurisdiction over the parties and subject matter, that the final order in the foreclosure actions was the order approving the sale and distribution (DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 137), and that, under Johnston, these judgments cannot be collaterally attacked on the ground that the circuit court had no authority to award fees under a statute subsequently held void.

Plaintiff argues that the allegations in its amended complaint attacking the jurisdiction of the court in the foreclosure proceedings permit the collateral attack here and renders inapplicable our statement in DeBruyn, that “[plaintiffs’ complaint *** contained no allegations attacking the jurisdiction of the court which entered the judgment of foreclosure and therefore failed to state a cause of action.” DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 138.

Plaintiff misinterprets the statement in DeBruyn. In DeBruyn, judgment was entered on the pleadings, and the court pointed out that, absent an allegation of lack of jurisdiction, the complaint failed to state a cause of action. Here the allegation that the court lacked jurisdiction is conclusional and contrary to the rule that “[[judgments entered in a civil proceeding may be collaterally attacked as void only where there is a total want of jurisdiction in the court which entered the judgment, either as to the subject matter or as to the parties. (Wood v. First National Bank (1943), 383 Ill. 515, 522.)” (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 112.) Plaintiff’s allegation that the courts which approved the fees under section 19 lacked jurisdiction merely reasserts the invalidity of the statute and gives no basis to question that the court in the prior instances had jurisdiction over the parties or subject matter.

Plaintiff argues alternatively that, when the court in DeBruyn declared section 1 of “An Act to provide for the fees of the sheriff ***” (Ill. Rev. Stat. 1977, ch. 53, par. 17) to be unconstitutional, it implicitly invalidated section 19. Plaintiff reasons that since section 19 was invalid prior to the entering of the final orders in most of the sales here, the circuit court exceeded its jurisdiction to approve the fees in those cases. Plaintiff cites no authority for this proposition. We fail to perceive in what manner the court in DeBruyn could have ruled upon the validity of section 19. No plaintiff in DeBruyn contended that he was forced to pay a sheriff’s fee under section 19 and courts are not authorized to issue advisory opinions. Howlett v. Scott (1977), 69 Ill. 2d 135, 143.

“One who would attack a statute or ordinance as unconstitutional must bring himself within the class as to whom the law is unconstitutional. *** Courts only determine the validity of a statute or ordinance in the light of the factual background presented by the record. Constitutional questions are not dealt with in the abstract.” (City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 254.)

Thus, at the time during which the fees were paid to defendant under section 19, no court of competent jurisdiction had held that that section was unconstitutional.

Plaintiff contends that it can collaterally attack the court orders approving the sales and fees collected by the defendant sheriff, under section 19, prior to the effective date of the amendment. Plaintiff cites Armstrong v. Obucino (1921), 300 Ill. 140, in which the court stated:

“The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it. (Windsor v. McVeigh, 93 U.S. 274; United States v. Walker, 109 id 258; Rogers v. Dill, 6 Hill, 415; Folger v. Columbian Ins. Co. 99 Mass. 267; Fifthian v. Monks, 43 Mo. 502; Seamster v. Blackstock, 83 Va. 233; Anthony v. Kasey, id. 338; Charles v. White, 214 Mo. 187.) Where a court, after acquiring jurisdiction, has assumed to enter a decree for a sale which goes beyond the limits of the jurisdiction and transgresses the law the decree is void, and the sale based thereon is likewise an absolute nullity. (16 R. C. L. 7.)” 300 Ill. 140, 143.

Armstrong is clearly distinguishable. Prior to July 1, 1917, the statute provided for enforcement of a mechanic’s lien by a sale of the premises, the recording of the certificate of sale and the execution of a master’s deed after 15 months, if there was no redemption. An amendment to the statute provided for no sale until after the period of redemption. The decree of sale was contrary to the express provision of the statute in a proceeding unknown to the common law and in which the court’s jurisdiction was based not on its constitutional and inherent jurisdiction but on the mechanic’s lien statute.

We consider next defendants’ contention that the fees on the cancelled sales were paid voluntarily and should not be repaid. Defendants argue that the fees were within the power of plaintiff to avoid and were not paid as the result of pressure, statutory penalties, duress or threat of disastrous effect on business. Plaintiff argues that this contention was rejected in DeBruyn. (84 Ill. 2d 128, 136.) We do not agree. Here, class members that paid fees on cancelled sales were not confronted with the possibility that electrical service would be disconnected (Ross v. City of Geneva (1978), 71 Ill. 2d 27), or that its employees would be arrested (People ex rel. Carpentier v. Arthur Morgan Trucking Co. (1959), 16 Ill. 2d 313), or that the services requested of the sheriff would not be completed as in DeBruyn (84 Ill. 2d 128, 136). We note too that the payments made by class members in connection with the can-celled sales were not made “under protest” as in Ross (71 Ill. 2d 27, 33). As a general rule, one who voluntarily accepts the benefits of a statute will be barred from challenging its validity, provided no question of public policy is involved (see People ex rel. Carpentier v. Arthur Morgan Tracking Co. (1959), 16 Ill. 2d 313, 315; People ex rel. Carpentier v. Treloar Tracking Co. (1958), 13 Ill. 2d 596, 599), and on the facts as stipulated it appears that the payments for the cancelled sales were not made under duress and cannot be recovered.

On cross-appeal, plaintiff contends that the circuit court erred in refusing to expand the classes of defendants and plaintiffs so that anyone who had made payments under section 19 to the sheriff of any county of the first or second class prior to January 1, 1982, could also recover from their respective counties. Plaintiff admits that the sheriff and treasurer of Kane County would be required to fairly represent and adequately protect the interest of all other possible defendant counties. As the appellate court noted in Gaffney v. Shell Oil Co. (1974), 19 Ill. App. 3d 987, 993-94:

“There are significant distinctions between permitting one person to sue on behalf of a class and compelling one person to defend as the representative of a class. An individual who initiates a class action does so voluntarily. He willingly assumes the plaintiffs’ burden to correct a wrong, assert a right, recover funds or obtain damages in the expectation that he and his counsel (See Andrews, The Class Action Bar, Juris Doctor, Jan. 1974, p. 18) will profit or at least be compensated for their zeal and labor. However, an individual who is singled out as the representative of a defendant class is involuntarily shackled with a heavy responsibility. He must protect not only himself but innumerable other people. He must retain an attorney and spend time and money in the preparation of a defense which will do justice to people he does not know and then must represent their interests in a trial of uncertain duration. Further, unlike a plaintiff class action when its object is a money judgment, no fund becomes available to the defendant class to cover its costs in the event it is successful. (Gordon, 42 Ill. L. Rev. 518 (1947-1948).) If the plaintiff is unable to pay the costs which the defendant has a right to recover, the defendant will have a right without a remedy. Tornquist, 5 Loyola L.J. 45 (1974).”

The Federal courts, xmder their Rule 23, have shown special concern in determining whether a defendant will adequately represent his class. See, e.g., In re the Gap Stores Securities Litigation (N.D. Cal. 1978), 79 F.R.D. 283, 290.

We find that the trial court did not abuse its discretion in refusing to certify the statewide classes.

Here, as in DeBruyn, we hold that defendants must account for only those funds received as fees on sales in connection with executions and redemptions not thereafter approved by orders of court. It becomes necessary to redefine the plaintiff class and the class must be defined as those persons who (1) paid fees under the provisions of section 19 of “An Act in relation to the compensation of Sheriffs, Coroners, County Treasurers, County Clerks, Recorders and Auditors with their necessary clerk hire, stationery, fuel and other expenses, in counties of less than 1,000,000 inhabitants” (Ill. Rev. Stat. 1979, ch. 53, par. 37) on and after the effective date of article VII, section 9(a), of the 1970 Constitution for sales in connection with executions and redemptions not thereafter approved in subsequent orders or decrees; (2) have not been reimbursed therefor by redemption; and (3) are the persons who suffered the burden or incidence of the illegal fee.

The judgment of the circuit court of Kane County is modified in the manner stated and as modified, is affirmed. The cause is remanded to the circuit court for further proceedings.

Affirmed as modified and remanded.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 57847.
    EILEEN HEINRICH, Special Adm’r, v. PEABODY INTERNATIONAL CORPORATION et al. (San-Dee Building Maintenance Company, Appellant, v. Brookshore Lithographers, Inc., Appellee).

      Opinion filed January 20, 1984.

      Wildman, Harrold, Allen & Dixon, of Chicago (Howard T. Brinton, Craig M. White, and Thomas E. Patterson, of counsel), for appellant.
    Sweeney and Riman, Ltd., of Chicago (Kevin F. Donohue, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This case is before us on the appeal of San-Dee Building Maintenance Company (San-Dee), one of three defendants in a wrongful death action brought by Eileen Heinrich, from the dismissal of a portion of its third-party complaint against Brookshore Lithographers, Inc. (Brook-shore), a party not named in the original action.

The plaintiff’s decedent was an employee of Brookshore at the time of his death. According to plaintiff’s complaint filed in the circuit court of Cook County, he was working on a trash compactor on Brookshore’s premises when Ignacio Ayala, a janitor for San-Dee who was performing work at the Brookshore plant, activated the compactor, causing his death by decapitation. The complaint alleged that Ayala was acting as San-Dee’s agent at the time of the incident, that Ayala was negligent in his operation of the machine and in failing to make certain that nobody was working on it before activating it, and that San-Dee was negligent in its hiring, training and supervision of its employees. In another count plaintiff alleged that certain defects in the compactor of which the manufacturer was or should have been aware rendered it unreasonably dangerous, and that its dangerous propensities were the direct and proximate cause of the decedent’s death. This allegation was incorporated into the count charging Ayala and San-Dee with negligence.

San-Dee denied the charges of negligence and filed a third-party action against Brookshore seeking contribution and indemnification. In support of its claim for indemnity it alleged that Brookshore was engaged in the business of salvaging and selling paper scrap from its printing operations, that Brookshore had arranged with San-Dee to use certain of its employees to assist in this salvage operation, that Ayala was “loaned” to Brookshore pursuant to this agreement and was working under Brookshore’s supervision at the time of the accident, that Brookshore owned and maintained the compactor which caused the death, and that Brookshore was negligent in failing to discover and warn of the unsafe condition of the machine, prohibit unrestricted access to the machine during work hours, provide adequate warning of the presence of men working on the machine and restrict access accordingly, label the machine’s switches and power controls in a proper manner, and provide adequate training and supervision to the workers who used the machine. Although the third-party complaint was divided into only two counts, we construe it to allege three separate grounds of recovery from Brookshore: first, a right of contribution; second, implied indemnity under the common law alleging a pre-tort relationship and active negligence on the part of Brookshore; and third, that the allegedly negligent employee (Ayala) was a servant loaned by San-Dee to Brookshore and thus Brookshore was responsible for his conduct.

Brookshore filed a motion to strike the latter two portions of San-Dee’s complaint, arguing that the complaint revealed no basis for indemnity and that gala’s status as a “loaned servant” should have been pleaded as an affirmative defense to the original complaint rather than as a basis for a third-party action. The trial court agreed with the latter contention, but instead of addressing the former it dismissed the count on the ground that after this court’s decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, and the subsequent enactment of the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) indemnity was no longer viable in Illinois. It certified that there was no just reason for delaying enforcement or appeal. (87 Ill. 2d R. 304(a).) However, the appellate court, in a Rule 23 order (87 Ill. 2d R. 23), dismissed San-Dee’s appeal on jurisdictional grounds (110 Ill. App. 3d 1198), ruling that, inasmuch as the claim for contribution was left standing, the dismissal of the other third-party claims was not a final, appealable order. We granted San-Dee’s petition for leave to appeal.

The dismissal of a single count of a complaint containing multiple counts is not always appealable, as the appellate court pointed out. (See Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622.) Nevertheless, this court has held that when the bases for recovery under the counts that are dismissed are different than those under the counts left standing, the dismissal is appealable because it disposes of a distinct cause of action. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 25.) This may occur when the grounds for recovery under the various counts derive from different statutes or common law doctrines (Cunningham v. Brown) or when the various theories of recovery require “different elements *** to establish a proper claim” or involve “differing standards of plaintiff’s conduct which will bar recovery” (Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 891).

In this case the appellate court determined that contribution and indemnification were not distinct causes of action because both were predicated on the same theory of recovery. We do not agree. Contribution in Illinois is a statutory remedy which involves a sharing of payment of damage awards and is available to all parties who are “subject to liability in tort arising out of the same injury *** or the same wrongful death” (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)). Indemnity, on the other hand, is a common law doctrine providing for the complete shifting of liability on a showing that there was a pre-tort relationship between the guilty parties and a qualitative distinction between their conduct. Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 231-32; Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 613.

The elements of contribution and indemnification are different. A claimant seeking the former need show only a common injury which his acts and those of the contributor combined to bring about and which makes them subject to liability in tort (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)), while one seeking the latter must show a pre-tort relationship with the indemnitor and some significant difference in the nature of their respective conduct which justifies a shifting of liability. The measure of recovery is different: indemnity is all or nothing, while absent inability to respond in damages by other culpable parties, no party is liable to make contribution beyond his pro rata share of the common liability as measured by the extent to which his acts or omissions, whatever their nature, proximately caused the injury (Ill. Rev. Stat. 1979, ch. 70, par. 303; Dowd, Questions Under Comparative Negligence Law, 65 Chi. B. Rec. 98, 102 (1983)). In addition, the absence of a qualitative difference in the nature of the conduct of the guilty parties will defeat a claim for indemnification (Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 449), while it is not fatal to a claim for contribution, except, perhaps, where made so by a statute creating a special standard of conduct and absolute liability for its breach. In short, contribution and indemnification are distinct theories of recovery, and an order dismissing a count seeking either one is not rendered unappealable by the survival of a count seeking the other. In addition, even though the third ground for recovery alleged by San-Dee, the loaned-servant doctrine, was set forth as part of the claim seeking indemnification, it is distinct from both indemnification and contribution, as we explain below.

Brookshore argues that the indemnity count was properly dismissed insofar as it depends on active and passive negligence, for no set of facts is alleged in the complaint which would support a finding that it was actively negligent while San-Dee was passively negligent. Neither the trial court nor the appellate court reached this issue.

We do not deal with this contention, for it presupposes the continued vitality of the traditional doctrine of indemnification. The trial court’s holding, which the appellate court did not address in its Rule 23 order, was that indemnity no longer existed in the law of this State in view of the Contribution Among Joint Tortfeasors Act and the decisions of this court, under which contribution replaced rather than supplemented indemnification as a vehicle for resolving multiparty claims. We believe that this issue, which has been the subject of scholarly comment (Anich, Implied Indemnity After Skinner and the Illinois Contribution Act: The Case for a Uniform Standard, 14 Loy. U. Chi. L.J. 531 (1983); Appel and Michael, Contribution Among Joint Tortfeasors in Illinois: An Opportunity for Legislative and Judicial Cooperation, 10 Loy. U. Chi. L.J. 169, 192-93 (1979); Ferrini, The Evolution from Indemnity to Contribution — A Question of the Future, If Any, of Indemnity, 59 Chi. Bar Rec. 254 (1978)) and at least one reported decision, in this State (Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 612-13), is an important one which awaits resolution in light of the developing law regarding the role of contribution in Illinois. In view of the fact that the parties have not taken an adversary position on the issue in this case, we decline to attempt to resolve it ourselves but remand the cause to the appellate court with instructions to consider this important issue before addressing the sufficiency of the pleadings.

We turn next to the other issue on which the circuit court focused, namely whether a defendant in a tort action based on a respondeat superior theory may invoke the “loaned servant” doctrine for the first time in an indemnity action rather than as a defense to liability in the original lawsuit. Brookshore argues that indemnification requires not only that the third-party plaintiff and defendant have a pre-tort relationship but also that they both be liable to the original plaintiff. It argues that if Ignacio Ayala was acting as the agent of Brookshore at the time of the accident he would not have been acting as San-Dee’s agent, and therefore San-Dee would not have been liable to the plaintiff and could not raise a claim for indemnification.

We agree that under the common law of this State indemnity could not operate unless the third-party claimant were found liable to the original plaintiff and compelled to pay a judgment. (See 21 Ill. L. & Prac. Indemnity sec. 43 (West 1977).) From this perspective it is imprecise to regard San-Dee’s loaned-servant allegation as an indemnity claim where it would have been a complete defense to its liability had San-Dee raised it successfully in the original lawsuit. The loaned-servant doctrine is not basically a theory of indemnity, but rather expresses the maxim of agency law that an agent of one master may be loaned to another and become the servant of the second master rather than the first for the special purposes for which he is loaned. (See Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 832; 53 Am. Jur. 2d Master and Servant sec. 415 (1970); Restatement (Second) of Agency sec. 227 (1958).) The only parallel between this doctrine and indemnity or contribution is that to the extent that a loaned servant is the agent of the second principal he is not the agent of the first.

We do not believe, however, that San-Dee’s loaned-servant allegation fails to state a third-party cause of action or that it should be dismissed merely because styling it as “indemnity” is logically confusing. If San-Dee’s allegations concerning Ayala’s status are correct, the result will be the shifting of its liability to the party who was actually responsible for the negligent behavior of Ayala if any occurred, and the avoidance of such liability by a party which was not responsible. This is a just result which should not be frustrated by rigid requirements of form in pleading as long as the third-party plaintiff sets forth facts in its complaint sufficient to put the other parties clearly on notice of the nature of its claim, as San-Dee has done here. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17; People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 145; Ill. Rev. Stat. 1979, ch. 110, pars. 33(3), 42(2).) The Supreme Court of the United States has entertained a loaned-servant claim in a suit for indemnity (George A. Fuller Co. v. Otis Elevator Co. (1918), 245 U.S. 489, 62 L. Ed. 422, 38 S. Ct. 180), and this court has hinted, albeit in dictum, that such a procedure would be proper (John Griffiths & Son Co. v. National Fireproofing Co. (1923), 310 Ill. 331, 340). In fact, this procedure makes more sense than introducing a loaned-servant contention as a defense to the original lawsuit without bringing the “borrowing employer” into the litigation. If the defendant who chooses the latter route succeeds in establishing that the employee who caused the plaintiff’s injury was loaned to another party, the plaintiff would then be free to seek recovery from that party, which in turn would be free to defend such an action on the ground that the servant was not loaned to him. Raising the argument in a third-party complaint rather than as a defense would avoid this waste of judicial resources and potential for inconsistent results, and it would assure the plaintiff of a recovery upon showing that the servant in question committed a negligent act which proximately caused the injuries and that, as between the defendant and the third party, he was the agent of one of them.

The determination of the appellate court that the dismissal of the indemnity count was not appealable is reversed. The cause is remanded to the appellate court for action consistent with the views expressed in this opinion.

Reversed and remanded.


author:
JUSTICE CLARK
      CHIEF JUSTICE RYAN,

text:
    (No. 57856.
    BEVERLY ASHFORD, Appellee, v. WILLIAM ZIEMANN, Appellant.

      Opinion filed January 20, 1984.

      RYAN, C.J., specially concurring.
    William P. O’Malley, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney of Chicago (Stuart D. Gordon, Special Assistant State’s Attorney of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

The plaintiff, Beverly Ashford, brought an action in the circuit court of Cook County pursuant to the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) to have the defendant, William Ziemann, declared to be the father of her daughter who was born on September 5, 1978. In the circuit court, the jury returned a verdict of nonpaternity. The plaintiff appealed to the appellate court raising the following four issues: (1) whether the trial court erred in refusing to admit her daughter’s birth certificate into evidence; (2) whether the trial court should have excluded the testimony of one of the defense witnesses; (3) whether remarks made by defense counsel in closing argument were so prejudicial as to require reversal; and (4) whether the verdict was against the manifest weight of the evidence. The appellate court held that the “birth certificate constituted relevant and proper evidence, and that the trial court erred in refusing its admission.” (110 Ill. App. 3d 34, 38.) The appellate court also held that, since the defendant had “wilfully violated the supreme court rules governing discovery,” the trial court had abused its discretion in refusing to bar the testimony of defense witness James Storz. (110 Ill. App. 3d 34, 41.) The appellate court did not address the other two issues raised by the plaintiff because of its resolution of the first two issues, and because the court could not foresee that those two issues would arise on remand. The appellate court, with one justice dissenting, reversed the circuit court and remanded the cause for further proceedings consistent with its opinion. The defendant filed a petition for leave to appeal with this court (87 Ill. 2d R 315(a)), and we granted the petition.

The plaintiff and defendant met and began dating in 1965. During the next four years of their relationship, they dated steadily and had sexual relations frequently. During the 1970’s, they began to see each other sporadically. The plaintiff testified that she had moved to California in 1969 and returned in 1970 and that when she came for visits to Chicago she would spend a day or two with the defendant before visiting with her family. Plaintiff had not seen the defendant for some time when, on December 10, 1977, she and her roommate, Linnea Desmond, happened to see the defendant while on their way to purchase a Christmas tree. As they were walking down the street, they saw the defendant in his car exiting an alley. Plaintiff knocked on the hood of defendant’s car to get his attention. Plaintiff testified that defendant told them that he was on his way to work, but he offered to help them get a tree later. Defendant, a detective for the Chicago police department, drove the two women home and then went to check into work. Plaintiff testified that the defendant returned later in an unmarked police car and that she, the defendant, and her roommate went to buy the Christmas tree. After returning to the plaintiff’s apartment to drop off the tree, the plaintiff and defendant went out for a drink. They then went to the defendant’s apartment. Defendant left his apartment to return to work to check out while the plaintiff remained in his apartment. Plaintiff testified that when he returned, they had sexual intercourse a couple of times before going to sleep. In the morning, she testified they again had intercourse, showered together, and then went to the Wheel-A-Round restaurant for breakfast. Plaintiff returned to her apartment on the afternoon of the next day, December 11, 1977. This was confirmed by the testimony of Linnea Desmond, the plaintiff’s roommate on that date. Ms. Desmond also testified that the plaintiff was wearing the same clothes she had worn the night before. Plaintiff testified that she had sexual intercourse with the defendant again on December 17, 1977, December 31, 1977, and January 20, 1978. On each occasion, they went to defendant’s apartment. The plaintiff testified that it was on New Year’s Eve, December 31, 1977, that she first told the defendant she thought she was pregnant. Even after the plaintiff told the defendant she thought she was pregnant, they continued to see each other. The defendant went to the plaintiff’s apartment for dinner twice during the month of January. The defendant also helped the plaintiff with some car problems she was having during the month of January. He dug her car out of the snow on one occasion and followed her to his mechanic’s repair shop, where she left the car to be fixed.

After the month of January 1978, the defendant and plaintiff did not communicate with each other for several months. In July of 1978, the plaintiff testified she called the defendant to discuss their responsibilities toward their unborn child. The plaintiff explained that she waited until July to call the defendant to give him time to get used to the idea of fatherhood. Defendant told plaintiff that the child was not his responsibility and that she should get a lawyer. Plaintiff testified that she had not dated anyone except the defendant since 1976.

Defendant testified at trial to the following. He dated plaintiff from 1965 until 1969. After they stopped dating, they still remained friends. In early December of 1977, he did help the plaintiff and her roommate purchase a Christmas tree. He could not remember the date on which they went to get the tree, but he stated that he used his own car and that he did not take the plaintiff to his apartment that night. Defendant also testified that he remembered the plaintiff being at his apartment on one occasion, which may have been New Year’s Eve. On that occasion, he remembered he drove the plaintiff home late at night. Defendant testified that he did not have sexual intercourse with the plaintiff during December of 1977, or January of 1978. Defendant did remember helping the plaintiff with her car problems several times in January of 1978. Defendant testified that he did discuss the plaintiff’s pregnancy with her and she did imply he was the father of the child. According to defendant, he had discussed the possibility of marriage with the plaintiff often in the late 1960’s. Once, he testified, the plaintiff asked him if he would marry her if he was still single when he reached the age of 35.

In addition to her previous testimony, the plaintiff’s roommate, Linnea Desmond, also testified that the defendant took her and the plaintiff to purchase a Christmas tree on December 10, 1977. She remembered the exact date because she had planned a large company party that had been held at the Chicago Yacht Club the night before. She testified that the plaintiff and she had seen the defendant on Barry and Broadway in the afternoon on December 10, 1977. Defendant told them he was on his way to work. Traffic began coming on Broadway, so plaintiff and Ms. Desmond got in the car. Defendant drove them home to their apartment and told them he would return that evening to take them to buy a Christmas tree. Ms. Desmond testified that, when they saw the defendant in the afternoon, he was in a small car, a car which looked like a Chevette. Later when he returned that evening to take them shopping, he was in a different car — “an older model, large car with four doors, very plain — plain looking, not luxurious at all, very used looking, stripped down looking.” Ms. Desmond testified that they drove in this larger car to a Christmas-tree lot at Clark and Wrightwood. After choosing the tree they wanted, they placed the tree in the trunk of the car the defendant was driving. After placing the tree in its stand at the plaintiff’s apartment, Ms. Desmond testified, the defendant suggested that she and the plaintiff owed him a drink. Since Ms. Desmond did not feel like going out for cocktails, she testified that the plaintiff and defendant went out without her. She stayed home and began decorating the tree. Ms. Desmond next saw the plaintiff about 1 or 2 o’clock in the afternoon on the 11th of December, at which time the plaintiff made a comment to Ms. Desmond regarding how she had put the tree up and done so much. Ms. Desmond testified that on December 18, 1977, the defendant came to pick up the plaintiff at 8 o'clock. Again, Ms. Desmond testified, the plaintiff did not return until the next day in the afternoon. On New Year’s Eve, Ms. Desmond testified, the defendant again came to pick up the plaintiff at 8 o’clock. She remembered that the defendant said he was not feeling very well. The plaintiff and defendant were about to leave when the plaintiff went back to her bedroom and came out with a long red robe. Ms. Desmond testified that plaintiff remarked, “I’d better take this along because it was cold there the last time.” The witness testified that she stayed in on New Year’s Eve. The next time Ms. Desmond saw the plaintiff was on January 1, 1978, at about 2 o’clock in the afternoon. Ms. Desmond also recalled seeing the defendant twice during the month of January when he had dinner at the plaintiff’s apartment. She never saw any other gentlemen come to visit the plaintiff or take her out on a date during the months of November and December.

Officer Edward L. Shipley of the Chicago police department, personnel division, also testified at trial. He testified that he maintained the personnel files on the defendant, William Ziemann, for the months of November and December of 1977, and January of 1978. Officer Shipley testified that the defendant did work on December 10, 1977, the third watch, which would mean from 4 p.m. until midnight. He also testified that the defendant worked the third watch on December 17, 1977, January 8, 1978, January 15, 1978, and January 20, 1978. These five dates are the dates on which the plaintiff testified the defendant was working.

James Storz was the only witness that testified for the defense besides the defendant. His testimony is the testimony which the plaintiff asserts should have been excluded. His existence was not revealed to plaintiff’s counsel until during the trial when a conference was held in the judge’s chambers regarding jury instructions. The bulk of the plaintiff’s case in chief had already been presented. Defense counsel stated that he had first interviewed Storz the day before he testified. Plaintiff’s counsel was given the opportunity to depose Storz during the trial. Storz was made available at 2 o’clock the afternoon before he testified. Storz testified that he was a bartender who had worked in several taverns in the plaintiff’s neighborhood. He allegedly first met the plaintiff in the summer of 1977. Between the time Storz met the plaintiff and November of 1977, he testified, he met her on several occasions for cocktails. He testified that the weekend before Thanksgiving 1977, he again met the plaintiff in a tavern. He alleged that they stayed for several hours and then went to his apartment, where they had intercourse. He testified that he met thé plaintiff by chance on two occasions in December of 1977 and, on one of those occasions, they went back to his apartment and had intercourse. On each occasion that the plaintiff allegedly went to Storz’ apartment and engaged in sexual intercourse, Storz testified, he awakened while the plaintiff was dressing and preparing to leave and that he only said goodbye. The next time, Storz testified, he saw the plaintiff was in January of 1978. Plaintiff allegedly told Storz at that time that she was pregnant. Storz never testified that the plaintiff told him he was or implied that he was the father of her child. Storz testified that he brought up the possibility of an abortion or adoption and that the plaintiff rejected both of his suggestions. The next time Storz said he saw the plaintiff was at trial. On cross-examination Storz was asked to describe the plaintiff. He described her as being five feet six inches tall, 115 pounds, with brown eyes. He testified that she had “shapely” legs with nothing unusual about them. He also testified that she had no scars or distinguishing marks on her stomach or pelvic area and that her breasts were “34C’s.” He testified that she usually drank scotch and water or scotch on the rocks. Storz also testified that he “picked up” four or five other women during the calendar year 1977.

Plaintiff testified as a rebuttal witness. She testified that she had never seen Storz before in her life until he walked into the courtroom to testify. She also testified that she is five feet two inches tall, weighs about 105 pounds, has blue eyes, a scar from her naval to her pelvic bone from a myomectomy, a birthmark the size of a quarter on her hip, and that one of her legs is misshapen due to childhood polio. Her right calf never fully developed, and her right leg is shorter and thinner than the left one. Her bra size, she testified, was far from a 34C. She also stated that she drinks nothing but beer or wine spritzers, and that she does not frequent the bars where Storz claimed to have met her.

We will first address the plaintiff’s contention that the trial court erred in refusing to admit her daughter’s birth certificate. On September 15, 1978, the Chicago Department of Health received a certificate of live birth signifying the birth of the plaintiff’s daughter. The certificate, signed by Dr. Stuart Abel, listed the child’s name,. date, and time of birth, sex, and place of birth. It also listed the plaintiff’s name, address, age, and place of birth. The father’s name was not listed on the certificate, but the age of the father, 37, and his place of birth, Illinois, were listed. Section 12(4) of the Vital Records Act (Ill. Rev. Stat. 1981, ch. 111½, par. 73-12(4)) does not permit an unwed mother to place the name of the alleged father on her child’s certificate of birth without the written consent of the father or unless a determination of paternity has been made by a court of competent jurisdiction.

During her testimony, the plaintiff, who had signed her child’s birth certificate, identified a certified copy of it. The defendant was then called as an adverse witness and asked his date and place of birth. Defendant testified that it was the same as that which appeared on the birth certificate. Plaintiff then sought admission of the birth certificate into evidence. The trial judge sustained the defendant’s objection and refused its admission. The judge stated: “The law is very clear that you cannot insert the name of the alleged father without his consent. I am not going to permit by innuendo now that she put the defendant on the stand and identify him as being 37 and living in the City of Chicago.”

We agree with the appellate court that the birth certificate constituted relevant and proper evidence and that the trial court erred in refusing its admission. In the plaintiff’s complaint, she alleged in paragraph one that she was “on September 5, 1978, delivered of a female child in Cook County, which child is deemed out of wedlock.” In his answer to paragraph one, defendant responded that he “neither admits or denies the allegations contained in paragraph 1, not having sufficient knowledge thereof, and demands strict proof thereof.” As the appellate court correctly noted, an essential element of a paternity case is that a child was born and was born out of wedlock. (Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.) As the dissenting justice in the appellate court points out, section 25 of the Vital Records Act (Ill. Rev. Stat. 1981, ch. 111½, par. 73 — 25) sets forth the permissible evidentiary uses of a birth certificate. Subsection 6 of section 25 provides that “[a]ny certification or certified copy of a certificate issued in accordance with this Section shall be considered as prima facie evidence of the facts therein stated.” (Ill. Rev. Stat. 1981, ch. 111½, par. 73 — 25(6).) Subsection 2 of that statute provides that “[t]he certification of birth shall contain only the name, sex, date of birth, and place of birth, of the person to whom it relates.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 111½, par. 73 — 25(2).) This court has previously interpreted the meaning of these two subsections. In People ex rel. Moran v. Teolis (1960), 20 Ill. 2d 95, 105, this court held that these two subsections (actually their predecessors (Ill. Rev. Stat. 1955, ch. 111½, par. 55)), taken in conjunction with one another, mean that a certificate of birth is “only evidence in the trial court of the name, sex, date and place of birth of the child.” We hold that the child’s birth certificate in this case could be properly admitted into evidence to prove those facts which it certifies.

We also agree with plaintiff’s assertion that the birth certificate in this case constituted an exception to the hearsay rule and should have been admitted.

In this case, the plaintiff, at the time of her daughter’s birth, made the statement that her daughter’s father was 37 years old and that he had been born in the State of Illinois. The plaintiff did testify at trial and was subject to cross-examination concerning this statement. Her statement on the birth certificate was consistent with her testimony that defendant, who was 37 at the time of her daughter’s birth and had been born in Illinois, was the father of her child. The defendant in his answer to the plaintiff’s complaint had challenged the plaintiff’s assertion that he was the father of her child; he demanded strict proof thereof. Also, in contesting this paternity action, the defendant was making a charge against the plaintiff of recent fabrication or improper motive. In People v. Clark (1972), 52 Ill. 2d 374, this court held that prior consistent statements are admissible “to rebut a charge or an inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication, [and such] evidence is admissible [to show] that he told the same story before the motive came into existence or before the time of the alleged fabrication. (Lyon v. Oliver, 316 Ill. 292, 303; Cleary, Handbook of Illinois Evidence (2d ed. 1963), sec. 9.12.)” 52 Ill. 2d 374, 389.

In People v. Carpenter (1963), 28 Ill. 2d 116, this court dealt with the issue of the admissibility of hearsay statements when the declarant is a witness and subject to cross-examination. In Carpenter, this court stated:

“An examination of the basis for this rule will clarify the situation. ‘Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ (McCormick, Law of Evidence, sec. 225; see also, Cleary, Handbook of Illinois Evidence, sec. 31.1 et seq.) The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered. While the administration of an oath and the right of confrontation are also spoken of as necessary elements, the essential feature, without which testimonial offerings must be rejected, is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the act asserted. (Wigmore on Evidence, 3rd ed. sec. 1361, et seq.; People v. Smuk, 12 Ill. 2d 356.) If this requirement is met, with the exception of instances such as those where the silence of the defendant is claimed to constitute an implied admission, the presence or absence of the defendant is immaterial.” 28 Ill. 2d 116, 121.

In this case, the plaintiff placed the information regarding the defendant’s age and place of birth on her daughter’s birth certificate. The plaintiff testified at trial regarding her prior statement and was subject to cross-examination. Under the circumstances in this case, the birth certificate was an exception to the hearsay rule and was improperly excluded.

We next address plaintiff’s contention that the trial court erred in refusing to exclude James Storz from testifying. Plaintiff asserts that Storz’ testimony should have been excluded as a sanction for the defendant’s wilful failure to comply with this court’s discovery rules and the orders of the circuit court compeHing his answer to the plaintiff’s interrogatory requesting the names of potential witnesses who would testify to having had intercourse with the plaintiff at the crucial time. On January 31, 1979, the plaintiff propounded a set of interrogatories to the defendant. In her interrogatories, the plaintiff included a request for disclosure of the existence of any other men that defendant contended had intercourse with the plaintiff during the 10-month period prior to the birth of her daughter. The plaintiff then filed two motions to compel the defendant to answer her interrogatories. In both cases, the court ordered the defendant to answer the plaintiff’s interrogatories. He never did answer them.

Without ever having received the defendant’s answers to the plaintiff’s interrogatories, the plaintiff’s counsel, on January 13, 1981, made a motion to set the case for trial. The motion stated “[tjhat discovery ha[d] been completed and there [was] no just reason for further delay in setting this cause for trial.” The trial was then set for March 9, 1981. On that date, the defendant requested a continuance until the next day. On March 10, 1981, at the start of the trial, the defendant informed the court that he would have one or two witnesses. Then at the conclusion of the proceedings on March 10, 1981, the defendant’s counsel advised the court that he intended to put the defendant and one other witness on the stand. On March 11, 1981, the defendant’s counsel, prior to the commencement of court proceedings that day, informed the judge and plaintiff’s counsel of the existence of James Storz. The notification took place in the judge’s chambers during a discussion regarding jury instructions. When the plaintiff was informed of Storz’ existence, she had already presented the bulk of her case in chief. The record is unclear as to when Storz’ existence became known to defense counsel. The discussion during which defense counsel told the plaintiff’s counsel and the judge of Storz’ existence took place in the judge’s chambers, outside the presence of a court reporter. The trial judge stated that defense counsel told the court that he became aware of Storz a week before trial, which would have been March 4, 1981. Defense counsel stated that Storz came to his attention on either March 6, 1981, or March 7, 1981. Storz testified that he first became aware of the case on March 1, 1981. As the majority of the appellate court pointed out, defense counsel knew of Storz at the earliest March 1, 1981, and at the latest March 7, 1981. In any event, it was prior to March 9, 1981, the date on which the trial would have commenced except for the defendant’s request for a continuance. Defense counsel waited until March 11, 1981, to inform the court and opposing counsel that Storz existed and that he intended to put him on the stand. Over the plaintiff’s objection, the trial judge ruled that Storz’ testimony would not be excluded. Plaintiff’s counsel was permitted to depose Storz timing the trial. Storz was supposed to be deposed at 12 o’clock dining a lunch break. However, Storz did not arrive until 2 o’clock, and he was deposed at that time. There is no indication in the record that the plaintiff’s counsel ever requested a continuance once Storz’ existence became known or after his deposition was taken.

Plaintiff asserts that the exclusion of Storz’ testimony would have been a proper sanction for defendant’s failure to comply with our discovery rules. Supreme Court Rule 219(cXiv) provides in pertinent part:

“(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
* * *
(iv) that a witness be barred from testifying concerning that issue.” 87 111. 2d R 219(c)(iv).

The appellate court held that the record clearly established that the defendant “wilfully violated the supreme court rules governing discovery.” (110 Ill. App. 3d 34, 41.) It further held that the trial court abused its discretion in refusing to bar the testimony of Storz because of the following reasons. First, it held, the defendant knew of the existence of the witness for several days before disclosing the fact to plaintiff. Second, it held that the late disclosure had worked to the defendant’s advantage because of the lack of time the plaintiff was given to investigate and the fact that Storz’ testimony had such an explosive impact on the plaintiff’s case. In Buehler v. Whalen (1977), 70 Ill. 2d 51, 67, this court stated:

“Our discovery procedures are meaningless unless a violation entails a penalty proportionate to the gravity of the violation. Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances. ***
Disclosure is the object of all our discovery procedures. It is the opinion of this court that trial courts should make disclosure a reality.”

“The question of the appropriate sanction, if any, to be employed by the trial court for failure to list a witness in response to a proper interrogatory is within the discretion of the trial court. Ferraro v. Augustine, 45 Ill. App. 2d 295, 304, 305, 196 N.E.2d 16. Refusal to employ any sanction is not an automatic abuse of discretion (Nagelmiller v. Seibel, 47 Ill. App. 2d 39, 45, 197 N.E.2d 457), although the trial court may abuse its discretion in failing to employ sanctions in certain cases (Rosales v. Marquez, 55 Ill. App. 2d 203, 204 N.E.2d 829).” Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283, 290.

In Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 132, the court held:

“We believe it to be well established that there are a number of factors to be considered in determining whether the exclusion of a witness is an appropriate sanction to impose when her name has not been furnished. Among the factors our courts have considered are: the surprise to the adverse party, the prejudicial effect of the testimony, the nature of the testimony, the diligence of the adverse party, the timely objection to the testimony and the good faith of the party calling the witness.”

In the instant case, a majority of the appellate court held that, in consideration of all these factors, the trial court had abused its discretion in refusing to exclude Storz’ testimony. 110 Ill. App. 3d 34, 41.

In McCabe v. Burgess (1979), 75 Ill. 2d 457, 464, this court held:

“Only a clear abuse of discretion or an application of impermissible legal criteria *** justifies a reversal of the trial court. (Yamamoto v. Omiya (9th Cir. 1977), 564 F.2d 1319, 1325; Carey v. Greyhound Bus Co. (5th Cir. 1974), 500 F.2d 1372, 1380.) This has been the standard of review which this court has applied in cases where discretion has been vested in the trial court.”

As a reviewing court, we must look to the factors which the trial court was to rely on in making its determination of an appropriate sanction in order to determine if the trial court has abused its discretion.

The first of these factors, as we have stated, is the surprise to the adverse party. In this case, there is no doubt that the plaintiff was surprised by the existence of this witness. The plaintiff had already presented the bulk of her case when she was informed that a previously unknown witness would be called to testify. To be told during the trial, while in the judge’s chambers discussing jury instructions, that a witness who the defense had known about for at least several days is going to offer damaging testimony which relates to the main issue in the case certainly ereates the element of surprise. A deposition taken the day before the testimony is given does not obliterate the surprise factor in light of the fact that the time factor prevents the testimony from being investigated, and more importantly the strategy of the plaintiff’s case which would serve to rebut the testimony may not be able to be implemented at that late point in the proceedings.

As far as the prejudicial effect of this testimony is concerned, nothing could be more prejudicial to a plaintiff in a paternity suit than to have another man come forward and testify that he had engaged in sexual intercourse with her during the crucial period in question.

The nature of the testimony was very delicate indeed. The witness was testifying to having sexual intercourse with the plaintiff. His testimony, if believed, could destroy the plaintiff’s case against the defendant.

The diligence of the adverse party cannot be denied. The plaintiff propounded interrogatories, filed two motions to compel answers to these interrogatories, and obtained two court orders demanding compliance with her discovery. Plaintiff’s counsel should not have made a motion to set the case for trial knowing that the defendant refused to comply with the plaintiff’s discovery requests, but we cannot say that the plaintiff in any way lacked diligence in attempting to obtain knowledge of the existence of witness Storz. In Rosales v. Marquez (1965), 55 Ill. App. 2d 203, a case which is factually similar to the instant case, after the jury had been selected but before any testimony was heard, the plaintiff’s attorney made it known that he intended to call a witness named Lorenzo. The defendant’s attorney advised the court that he objected to Lorenzo testifying because of the plaintiff’s failure to answer the defendant’s interrogatories. The plaintiff’s attorney admitted the plaintiff’s failure to answer the interrogatories but argued that defense counsel was at fault because he had not followed up the order giving the plaintiff 15 days to answer and that the objection to pretrial discovery procedure should have been made prior to trial. The plaintiff’s counsel also contended that the defendant had been given Lorenzo’s name and address during the plaintiff’s deposition and that he was under no obligation to furnish Lorenzo’s new address. During the plaintiff’s deposition, he had stated that Lorenzo’s address was Acapulco, Mexico. When Lorenzo was called to testify, it was determined by the judge that the witness actually had been living in the United States for several years. The trial judge held that Lorenzo could not be used as a witness. The appellate court, in affirming the circuit court, held:

“The failure of the plaintiff to answer the interrogatories twice served upon him and his failure to comply with an order of the court directing him to answer alone justified the exclusion of the witness. The sanction imposed, while severe, was less drastic than the dismissal of his complaint and judgment on the remaining pleadings — a sanction permitted by rule 19 — 12(3) if a party does not comply with an order entered under the discovery rules. *** Offering the witness for questioning during the noon recess neither cured the plaintiff’s noncompliance with the court’s order nor his error as to the address.” 55 Ill. App. 2d 203, 209-10.

It is clear that the plaintiff’s attorney did object in a timely fashion to witness Storz testifying. There is evidence in the record that the plaintiff’s counsel objected during the conference that was held in the judge’s chambers during which plaintiff’s counsel became aware of Storz’ existence.

We agree with the appellate court that the defendant in this case lacked good faith. The appellate court held that there was “deliberate concealment of a material witness by defendant.” (110 Ill. App. 3d 34, 41.) It is troublesome that although defendant knew of his intention to have Storz testify that fact was not brought to plaintiff’s attention until it was too late for her to change her trial strategy. In a paternity action, if a plaintiff is led to believe that there are no witnesses who will testify to the possibility of their paternity then her trial strategy would certainly be different than if she were only attempting to prove that one person is the father of her child.

There are numerous cases in which the issue of the exclusion of a witness’ testimony for failure to answer interrogatories has arisen. (See, e.g., Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254; Burns v. West Chemical Products, Inc. (1973), 12 Ill. App. 3d 947; Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129; Ocasio-Morales v. Fulton Machine Co. (1973), 10 Ill. App. 3d 719; Carlson v. General Motors Corp. (1972), 9 Ill. App. 3d 606; Department of Public Works & Buildings v. Decatur Seaway Motor Express Co. (1972), 5 Ill. App. 3d 28; Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283; Rosales v. Marquez (1965), 55 Ill. App. 2d 203; Wright v. Royse (1963), 43 Ill. App. 2d 267.) Each of these cases presents a unique factual situation which was considered in determining whether a sanction was to be imposed. The facts in the instant case have been set forth in relation to the factors that a trial court is supposed to consider in determining when exclusion of a witness’ testimony is an appropriate sanction. We believe it is clear that in this particular case the trial court abused its discretion in denying the plaintiff’s request that the surprise witness’ testimony be excluded.

Since we have determined that the trial court erred in refusing the admission of the plaintiff’s daughter’s birth certificate and in refusing to exclude.the surprise witness’ testimony, it is not necessary for us to address the other two issues the plaintiff raised in this appeal. We affirm the judgment of the appellate court, which reversed the judgment of the circuit court and remanded the cause for a new trial.

Judgment affirmed.

CHIEF JUSTICE RYAN,

specially concurring:

I concur in the judgment of the court and in the court’s opinion insofar as it holds that defense witness James Storz’ testimony was improperly admitted. I do not agree, however, with the court’s decision that the birth certificate should have been allowed into evidence. In so deciding, the court not only disregards the statutory limitations on the evidentiary use of a birth certificate, but also misapplies the rules that this court has set out concerning the admissability of prior consistent statements.

With certain exceptions, the data contained on a birth certificate is hearsay, and the certificate therefore is inadmissible to prove the truth of the statements contained therein. (Howard v. Illinois Trust & Savings Bank (1901), 189 Ill. 568, 573-74; see also E. Cleary & M. Graham, Handbook of Illinois Evidence secs. 803.1, 803.14 (3d ed. 1979); S. Gard, Illinois Evidence Manual Rules 3:16, 3:17, at 93-94 (2d ed 1979); McCormick, Evidence sec. 316 (E. Cleary 2d ed. 1972).) Section 25 of our Vital Records Act (Ill. Rev. Stat. 1981, ch. 111½, par. 73 — 25) sets out the few permissible evidentiary uses of a birth certificate, thereby defining the exceptions to the hearsay rule in this area. As construed by this court, the statute directs that a birth certificate be considered as prima facie evidence of only the child’s name, sex, birthplace, and date of birth. (Ill. Rev. Stat. 1981, ch. 111½, pars. 73-25(2), (6); People ex rel. Moran v. Teolis (1960), 20 Ill. 2d 95, 105.) The dissenting justice in the appellate court correctly observed that other declarations on the certified copy of the birth certificate, such as those relating to parentage, are inadmissible hearsay. (See People ex rel. Ashford v. Ziemann (1982), 110 Ill. App. 3d 34, 42 (Stamos, P.J., dissenting).) Accordingly, it has been held that a birth certificate may not be used to prove the mother’s residence, although stated therein (People ex rel. Moran v. Teolis (1960), 20 Ill. 2d 95, 105), or to prove that a child is his mother’s second offspring (Howard v. Illinois Trust & Savings Bank (1901), 189 Ill. 568, 573-74).

The facts that a birth certificate may properly certify were not seriously disputed at trial in this case. Instead, the central issue was the identity of the child’s father. Although the birth certificate did not name the father, it did state his age and birthplace. Plaintiff, after having identified a certified copy of the birth certificate, called defendant as an adverse witness to confirm that his age and birthplace correspond with those listed on the certificate for the child’s father. Plaintiff’s attempt to admit the birth certificate was an obvious effort to imply that defendant was indeed the father described on the document. Because her strategy exceeds the purposes for which that document properly could be offered, I would affirm the trial court decision to exclude the birth certificate.

Plaintiff also sought to illustrate her consistency by showing that the birth certificate, which she had signed well before bringing this suit, declared the child’s father to be a man of the same age and with the same birthplace as the man she later named as defendant. In more common evidence-law terms, she tried to bolster her credibility as a witness by introducing her own prior consistent statement.

This court has consistently held that proof of a witness’ out-of-court statements which corroborate the witness’ trial testimony are inadmissible. An exception is recognized when the offer is made to rebut charges of recent fabrication or improper motive. (E.g., People v. Emerson (1983), 97 Ill. 2d 487, 501; People v. Clark (1972), 52 Ill. 2d 374, 389; Lyon v. Oliver (1925), 316 Ill. 292, 303.) In the case at bar, the court notes that defendant's charges of recent fabrication and improper motive are inherent in his contesting this paternity action. It thus concludes that the exception applies to allow the birth certificate into evidence. I disagree.

The exception relied upon only applies in cases where the corroborating statement was made “when the motive did not exist or before the effect of the account could be foreseen.” (Lyon v. Oliver (1925), 316 Ill. 292, 303.) Orneases illustrate this principle. In People v. Clark (1972), 52 Ill. 2d 374, an alibi witness testified that the defendant was at her house at the time of the killing. However, the trial judge did not permit her to testify that she had told police the same story several weeks after the killing. This court held that references to the prior consistent statement were properly excluded. The statement was made to police well after the killing and after eyewitnesses had identified the defendant in a lineup. The testimony could not come in under the exception for rebuttal of a recent fabrication charge because “[e]very motive for fabricating a false statement existed [when she told her story to police] that existed at the time of the trial.” (People v. Clark (1972), 52 Ill. 2d 374, 389.) Also, in People v. Emerson (1983), 97 Ill. 2d 487, a State’s witness had borrowed $5,000 from defendant several years before the alleged crime and had repeatedly refused to repay the money. When this witness testified to defendant’s guilt, his credibility was attacked with a claim that the unpaid debt gave rise to an improper motive. To bolster his own veracity, the witness testified that he had identified the defendant to police immediately after the alleged crime. We held that this prior consistent statement was improperly admitted. Because of the longstanding $5,000 debt, this witness had the same motive for falsely identifying defendant immediately after the crime that he had when he testified at trial. (People v. Emerson (1983), 97 Ill. 2d 487, 499-501.) See also People v. Powell (1973), 53 Ill. 2d 465, 474-75.

As with the statements barred in Clark and Emerson, the birth certificate in the case at bar falls within the general rule against prior consistent statements, rather than within the exception. If plaintiff in fact testified falsely, her motive — to identify the child’s father — arose when she learned that she was pregnant. Indeed, both parties testified that shortly after she learned of the pregnancy, plaintiff told defendant that he was the father.

Under these circumstances, plaintiff should be prevented from using her own statements on the birth certificate as an apparent documentation of the veracity of her trial testimony. By allowing its admission, the court sanctions the precise self-serving tactic that our cases have repeatedly barred.

It is in this respect that I think the court has misapplied the law of prior consistent statements. On this basis, as well as the hearsay ground discussed earlier, I would affirm the trial court’s exclusion of the birth certificate.


author: JUSTICE WARD

text:
    (No. 57878.
    EDWARD J. BORG, Appellee v. THE VILLAGE OF SCHILLER PARK POLICE PENSION BOARD et al., Appellants.

      Opinion filed January 20, 1984.

      Jerome F. Grotty and Jon A. Duncan, of Rieck & Crotty, P.C., of Chicago, for appellants.
    Richard L. Manning and Tym J. Kerr, of Crowley, Fuller & Manning, of Chicago, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal involves the divestiture of police pension benefits upon conviction of a service-related felony. On April 7, 1981, the plaintiff, Edward J. Borg, the chief of police of the village of Schiller Park, submitted a letter of resignation to the village and made application for pension benefits to the defendant, the village of Schiller Park police pension board (the Board). The Board denied the application for pension benefits on the ground that the plaintiff had pleaded guilty on April 8, 1981, in the United States District Court at Chicago, to an indictment charging extortion. It is agreed that the crime, a felony, was related to his service as a police officer. The Board also denied Borg a refund of the money he had contributed during his service to the pension fund. The circuit court of Cook County upheld the Board’s denial of the application for pension benefits but reversed the denial of the refund. The appellate court, however, held that Borg was entitled to pension benefits, which made the question of a refund moot. (111 Ill. App. 3d 653). We granted the Board’s petition for leave to appeal under Rule 315 (87 Ill. 2d R. 315).

The plaintiff began service as a Schiller Park police officer on August 18, 1952, and was appointed chief of police on August 17, 1953. The village of Schiller Park adopted the provisions of the Fire and Police Commissioners Act on April 16, 1957, which resulted in the es-' tablishment of a police pension fund on August 20, 1959. The plan, which became operational in April 1961, provided for contributions of 7% of an officer’s annual salary. Borg began contributing to the plan in April 1961 and, through supplemental contributions in January 1975, made his entitlement to benefits in the fund retroactive to August 20, 1959. His total contribution to the plan was $24,197.62.

As stated, on April 7, 1981, Borg resigned from the Schiller Park police department and, after applying to the Board for pension benefits, pleaded guilty on April 8, 1981, to an indictment charging extortion under 18 U.S.C. sec. 1951 (1982). The Board denied Borg’s application for pension benefits under the felony divestiture provision of the policemen’s pension fund article of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 108½, par. 3-147).

On June 9, 1981, Borg filed a complaint for administrative review in the circuit court of Cook County, arguing that the relief provision of the felony divestiture section was applicable to his case and that the Board erred in denying pension benefits. On December 7, 1981, the circuit court affirmed the Board’s denial of benefits, principally on the authority of Kerner v. State Employees' Retirement System (1977), 53 Ill. App. 3d 747, aff'd (1978), 72 Ill. 2d 507. Thereafter, Borg applied for a refund of his contributions to the pension fund and the Board also denied that application. On a petition to review the refund denial, however, the circuit court ordered payment of the refund.

The appellate court reversed the denial of pension benefits and declared the question of a refund to be moot. The court held that the language “future entrant entering service,” appearing in the statute involved, referred to the commencement of employment as an officer and not to entrance into the pension system. Since Borg entered service before July 11, 1955, which as will be seen, is the effective date of a provision in the statute, the felony divestiture provision was not applicable to him.

The statute provides:

“None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as a policeman.
This section shall not operate to impair any contract or vested right heretofore acquired under any law or laws continued in this Article, nor to preclude the right to a refund.
All future entrants entering service subsequent to July 11, 1955 shall be deemed to have consented to the provisions of this section as a condition of coverage.” (Ill. Rev. Stat. 1981, ch. 108½, par. 3-147.)

The first paragraph of this section was, of course, the ground of the Board’s decision to deny Borg his pension benefits. The plaintiff says that the third paragraph of the section acts as a relief provision, and, when operative, prevents the application of the felony divestiture provision. Borg argues that since he was employed prior to July 11, 1955, viz., August 1952, he was not a “future entrant entering service” when he joined the pension system and therefore did not consent to the provisions of the section as a condition of coverage. The Board argues that Borg “entered service” in the pension plan subsequent to July 11, 1955, and therefore, the felony divestiture provision applied.

We must consider, therefore, the term “future entrants entering service.” The issue is whether this language refers to entering the pension system or entering employment. If it is interpreted as the former, the felony divestiture provision would operate to deprive Borg of his pension benefits. If interpreted to mean entering employment, the provision in the third paragraph would operate as a savings clause to prevent forfeiture of benefits.

In Arnold v. Board of Trustees (1981), 84 Ill. 2d 57, tins court considered statutes identical to the one here, except that the statutes involved Cook County employees and Chicago park district employees (Ill. Rev. Stat. 1977, ch. 108½, pars, 9 — 235, 12 — 191). In Arnold, the plaintiffs began' employment with Cook County and the Chicago park district, and became members of their pension systems prior to the 1955 amendment which added the felony forfeiture provision. The plaintiffs in Arnold, too, were convicted of service-related felonies, and their pension benefits were terminated, but the appellate court reinstated the benefits. Referring with approval to the holding in Shanahan v. Policemen's Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543, this court, in affirming the appellate court, stated that “it was the intent of the legislature to make the felony-forfeiture provision applicable only to those employees ‘entering service after July 11, 1955.’ ” Arnold v. Board of Trustees (1981), 84 Ill. 2d 57, 63.

In Shanahan, the plaintiffs became Chicago police officers and participants in their pension system prior to July 11, 1955. The statute in Shanahan was identical with the one here, except for an additional paragraph not relevant here. The plaintiffs were convicted of service-related felonies in 1972, and their pension benefits were revoked by the retirement board under the felony .forfeiture provision. The trial court affirmed the board, but the appellate court reversed. The court held that since the plaintiffs entered the police force prior to July 11, 1955, the forfeiture provision did not apply. The court stated:

“The fact that [the felony forfeiture section] expressly applies to ‘future entrants entering service after July 11, 1955,’ impliedly excludes prior entrants from coverage. Where a statute enumerates persons affected, it must be construed as excluding from its effect all those not expressly mentioned. [Citations.] Thus, without any indicators to the contrary, the presumption is that the legislature intended to exclude from coverage those officers who joined the force prior to July 11, 1955.” 43 Ill. App. 3d 543, 547.

The court quoted definitions from other sections of the Code to support its interpretation. It noted (43 Ill. App. 3d 543, 547) that section 5 — 111 defines “ ‘future entrant’ as ‘(a) A person employed by a city as a policeman for the first time on or after the effective date ***.’ ” (Ill. Rev. Stat. 1971, ch. 108½^, par. 5 — 111). Section 5 — 111 appears in Article 5, which relates to cities over 500,000, but it is reasonable to say the legislature intended a consistent meaning to the same language appearing in different sections of the same statute. (See People v. Lutz (1978), 73 Ill. 2d 204, 212; Chapman v. County of Will (1973), 55 Ill. 2d 524, 529-30.) The appellate court in this case also referred to section 5 — 111 in concluding that “future entrant entering service” referred to commencing employment as a member of a police force.

To support their position that “entering service” means entry into a pension plan and as the plaintiff here acquired pension rights after July 11, 1955, his rights can be divested, the defendants cite Kerner v. State Employees’ Retirement System (1978), 72 Ill. 2d 507. In Kerner, the pensioner entered the pension system in 1965. He made payments into the system to make his right to benefits retroactive to January 9, 1961. After his resignation in 1969, Kerner began receiving pension payments, only to have them terminated in July 1973 due to a service-related felony conviction. Interpreting a similar felony divestiture statute, this court affirmed the denial of pension benefits.

In Kerner, however, the plaintiff did not “enter service” before 1955. His argument was that as he had begun to receive pension payments his rights “vested” and, therefore, could not be divested under a provision similar to that in the second paragraph of the statute here. The question in Kerner was different from the question here. As the appellate court correctly put it:

“Because Kerner had both entered service and acquired pension rights after 1955, there was no need for the court to distinguish between these two events, and its entire discussion is couched in terms of rights rather than in terms of service. *** It is therefore inappropriate in this case to apply the language of Kerner as if that case had determined that ‘entering service’ is synonymous with acquiring pension rights.” 111 Ill. App. 3d 653, 656.

The felony divestiture provision in section 3 — 147 was not applicable to the plaintiff, as he entered police service prior to July 11,1955.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 58053.
    RICHARD CONNER, Appellant, v. COPLEY PRESS, INC., et al., Appellees.

      Opinion filed January 20, 1984.

      Wayne B. Giampietro and Katherin A. Koenig of De-Jong, Poltrock & Giampietro, of Chicago, for appellant.
    Barry O. Hines of Barber, Hall, Segatto & Hoffe, of Springfield, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

On April 24, 1978, the plaintiff, Richard Conner, filed a defamation action in the United States District Court for the Southern District of Illinois against Copley Press, Inc. and Kitty Behof. The plaintiff’s complaint was timely filed within the one-year period of the statute of limitations for such actions (Ill. Rev. Stat. 1977, ch. 83, par. 14). On October 4, 1978, the district court dismissed the plaintiff’s action for lack of subject matter jurisdiction because it found that no diversity of citizenship existed between the parties.

On December 14, 1978, the plaintiff filed a complaint with the same allegations of defamation in the circuit court of Sangamon County. The defendants moved to dismiss the complaint because it was not within one year of the date of the allegedly libelous publication. The court denied the motion to dismiss, holding that section 24 of the Limitations Act (Ill. Rev. Stat, 1977, ch. 83, par. 24a) was applicable. The period of limitation was thus extended, giving the plaintiff one year to file a suit from the time of dismissal of the district court action. The defendants were granted an interlocutory appeal to the appellate court under Rule 308 (58 Ill. 2d R. 308) on the issue of the applicability of section 24. The appellate court reversed, holding that .section 24, as it provided at the time the State suit was. brought, did not cover the district court’s dismissal for want of subject matter jurisdiction. (112 Ill. App. 3d 248.) The plaintiff’s petition for leave to appeal to this court under Rule 315 was granted. 87 Ill. 2d R. 315.

Section 24 of the Limitations Act, at the time of the plaintiff’s filing in the circuit court of Sangamon County, provided:

“In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter .alleged in arrest of judgment, the judgment is given against the plaintiff; or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the action is voluntarily dismissed by the plaintiff or the action is dismissed for want of prosecution.” Ill. Rev. Stat. 1977, ch. 83, par. 24a.

Section 24 thus allows a plaintiff, whose original action has been dismissed on specified grounds, to file an action again though the statute of limitations has run. If the dismissal was on one of the specified grounds, the statute provides, in effect, a new limitations period which will extend at least one year from the date of the dismissal. Up until 1976, the grounds when section 24 would be applied included when “the plaintiff is nonsuited.” (Ill. Rev. Stat. 1975, ch. 83, par. 24a.) In 1964, this court interpreted the term “nonsuited” to extend to a plaintiff whose case was dismissed by a United States District court on the ground of lack of jurisdiction. (Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill. 2d 40.) In 1976, section 24 was amended. The ground “the plaintiff is nonsuited” was stricken and “the action is voluntarily dismissed by the plaintiff” was substituted. (Ill. Rev. Stat. 1977, ch. 83, par. 24a.) The change was part of a comprehensive act recommended by the law revision commission to correct statutory conflicts and legislative oversights. (Pub. Act 79 — 1358 (Aug. 6, 1976), 1976 Ill. Laws 713.) Subsequent to this change to “the action is voluntarily dismissed by the plaintiff,” this court, in dictum, stated that section 24 “no longer applie[d]” to dismissals from a Federal court for lack of jurisdiction. (Hupp v. Gray (1978), 73 Ill. 2d 78, 83.) In 1980, the legislature again amended section 24 and made it applicable when “the action is dismissed by a United States District Court for lack of jurisdiction.” (Ill. Rev. Stat. 1981, ch. 83, par. 24a.) That section 24 in its present explicit form is applicable to Federal court dismissals for want of jurisdiction is, of course, completely clear. The issue here, however, is the applicability of the statute in 1978 when the ground relevant here was “the action is voluntarily dismissed by the plaintiff.”

The plaintiff contends that Federal court dismissals for lack of jurisdiction were within the scope of section 24 in 1978 because, he says, the authority of Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill. 2d 40, continued after the change in language to “voluntarily dismissed” in 1976. He says that “nonsuited” may be equated with “voluntarily dismissed.”

The defendants argue that the 1976 amendment substantially changed section 24, because the term “nonsuit” is not equivalent to “voluntary dismissal.” Thus, they argue, the Roth interpretation of section 24 was no longer valid, and Federal dismissals for want of jurisdiction were not included in the statute until specifically provided for in the 1980 amendment.

In Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill. 2d 40, upon which the plaintiff relies, this court held that section 24’s provision relating to “nonsuit” included dismissals for want of jurisdiction. The coqrt adopted the reasoning of Sachs v. Ohio National Life Insurance Co. (7th Cir. 1942), 131 F.2d 134, in which the Court of Appeals for the Seventh Circuit considered the applicability of section 24. This court quoted from the Sachs holding: “ '*** [i]n both common law nonsuit and dismissal for want of jurisdiction the order is due to some defect in the procedure or proof which prevents a trial on the merits. *** and it is illogical to assume that the legislature meant to prevent hardship in the case of a nonsuit, but not in that of dismissal for want of jurisdiction. ***' ” (Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill. 2d 40, 42.) It would appear that this court in Roth considered the term “nonsuit” to mean “involuntary dismissal,” because what this court found in common between nonsuits and dismissals for lack of jurisdiction was that both were involuntary in that both involved “defects in procedure or proof.” We judge that Roth no longer had force after 1976 when the legislature substituted “voluntarily dismissed” for “nonsuited.”

The language of the 1976 amendment was plain and clear: “The action is voluntarily dismissed by the plaintiff.” The plain meaning of section 24 after the 1976 amendment was that it could be invoked in case of a voluntary dismissal by a plaintiff. Dismissals for lack of jurisdiction are not voluntary dismissals by the plaintiff, but are dismissals by the court on another ground, viz., lack of jurisdiction.

Concerning a statutory provision with language that is plain and clear, this court has observed:

“The language of a statute must be given its plain and ordinary meaning. ‘It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. [Citations.] This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ ” Franzese v. Trinko (1977), 66 Ill. 2d 136, 139-40, quoting Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.

We consider that “after the action is voluntarily dismissed by the plaintiff” is language that is self-explanatory. We have already noted that this court in Hupp v. Gray (1978), 73 Ill. 2d 78, 83, stated, after the change in the language to “voluntarily dismissed by the plaintiff,” that section 24 “no longer applie[d]” to dismissals from a Federal court for lack of jurisdiction. This court’s statement in Hupp was:

“During the pendency of this case in the appellate court, the legislature amended section 24 by substituting the words ‘the action is voluntarily dismissed by the plaintiff’ for the words ‘if the plaintiff is nonsuited’ (Ill. Rev. Stat. 1977, ch. 83, par. 24a). Consequently, as the statute now reads, its protection would now be unavailable to plaintiff, since his action was nonsuited and not voluntarily dismissed.” (Hupp v. Gray (1978), 73 Ill. 2d 78, 82.)

This view was also expressed in O’Brien v. Continental Illinois National Bank & Trust Co. (7th Cir. 1979), 593 F.2d 54.

Finally, the plaintiff contends that in any event the 1980 amendment should be applied retroactively so as to revive his cause of action. The contention cannot be accepted. This court has held that “an amendment which extends a statute of limitations will not be applied retroactively so as to revive a cause of action which had already been barred by the expiration of the original limitation period,” and “[s]ection 24 is, in effect, an extension of the appliable limitation period.” Hupp v. Gray (1978), 73 Ill. 2d 78, 83; see also Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161; Country Mutual Insurance Co. v. Knight (1968), 40 Ill. 2d 423.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.