Glisson v. City of Marion
Annotate this Case
June 30, 1998
NO. 5-97-0185
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
JOSEPH M. GLISSON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Williamson County.
)
v. ) No. 97-CH-7
)
THE CITY OF MARION, ILLINOIS, and )
ROBERT BUTLER, Mayor, ) Honorable
) Paul S. Murphy,
Defendants-Appellees. ) Judge, presiding.
_________________________________________________________________
JUSTICE RARICK delivered the opinion of the court:
Plaintiff, Joseph Glisson, filed a complaint for injunctive
and declaratory relief in the circuit court of Williamson County,
seeking to enjoin the City of Marion from constructing a dam and
reservoir on Sugar Creek. Glisson alleged, inter alia, that the
project will destroy the habitat for two species listed as
endangered or threatened under the Illinois Endangered Species
Protection Act (Act) (520 ILCS 10/1 et seq. (West 1994)). The
circuit court dismissed Glisson's complaint, finding that he lacked
standing. We reverse.
The City of Marion (Marion) and the Lake of Egypt Water
District, which encompasses six counties and 15,000 rural
customers, need more water. Since the 1920s, Marion has drawn most
of its water from Marion City Lake. Marion's requirement of 1.7
million gallons per day of raw water far exceeds Marion City Lake's
capacity of 1.1 million gallons per day. Furthermore, the water
from Marion City Lake is of poor quality, requiring substantial
chemical treatment to render it potable. The Lake of Egypt Water
District also contends that it needs a new source of water. The
water district gets its water from the Lake of Egypt, another
reservoir of marginal quality.
Marion proposed to solve both problems by constructing a new
water-supply reservoir. Marion would construct a dam across Sugar
Creek near Creal Springs, Illinois, some seven miles southwest of
Marion. The result would be a lake approximately 2,500 feet wide
and 20,000 feet long and could supply 8.9 million gallons of water
per day. It would also result in the loss of about eight miles of
one of the last free-flowing streams in Southern Illinois and a
corresponding loss of wildlife habitat.
As one of the navigable waters of the United States, Sugar
Creek falls under Federal jurisdiction. Section 404 of the Clean
Water Act (33 U.S.C.A. 1344 (West 1986 & Supp. 1997)) requires
anyone seeking to discharge dredge or fill materials into the
navigable waters of the United States to obtain a permit from the
United States Army Corps of Engineers (Corps). Because of the
requirement that the Corps issue a permit for the construction of
the reservoir, the project became subject to the National
Environmental Policy Act (NEPA) (42 U.S.C.A. 4321 et seq. (West
1994)) which requires, inter alia, that every recommendation or
report on a proposal for a major Federal action significantly
affecting the human environment be accompanied by an environmental
impact statement (EIS). 42 U.S.C.A. 4332(2)(C) (West 1994).
Federal regulations authorize the preparation of an environmental
assessment to determine whether a project will significantly impact
the human environment. 40 C.F.R. 1501.4(1).
Marion applied for a section 404 permit from the Corps. The
Corps prepared an environmental assessment and provided copies to
various state and Federal agencies. The Corps concluded that the
proposed project would create no significant environmental impact
and that, therefore, no EIS was required. The Sierra Club and
others brought an action in the United States district court, and
the district court reversed the Corps, finding that the project
would create a significant impact on the environment and that an
EIS was therefore required. Simmons v. United States Army Corps of
Engineers, No. 91-CV-4188-JLF (S.D. Ill. June 25, 1992) (Simmons
I).
The Corps prepared an EIS and a supplemental EIS. Commenting
on the draft EIS, the Illinois Department of Natural Resources
(IDNR) opposed the project, but the Corps nevertheless issued the
city another permit, precipitating a second Federal action. The
district court ruled against the plaintiffs (Simmons v. United
States Army Corps of Engineers, No. 96-CV-4246-JPG (S.D. Ill.
December 18, 1996) (Simmons II)), and they appealed. During the
pendency of that appeal, Glisson filed the present action alleging
that the project would violate the Act and do other harm to the
environment. Marion filed a motion to dismiss pursuant to section
2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West
1994)), arguing, inter alia, (1) that Glisson lacked standing to
sue under the Act, (2) that the issues were not ripe for
adjudication because Glisson's petition failed to present an actual
justiciable controversy, (3) that Glisson's petition failed to
state a claim upon which relief could be granted because Marion had
complied with its obligations under the Act, and (4) that Glisson's
petition failed to state a claim upon which relief could be granted
because the Act does not provide for declaratory or injunctive
relief. The circuit court granted Marion's motion to dismiss,
finding that Glisson lacked standing because (1) article XI,
section 2, of the Illinois Constitution of 1970 did not empower
Glisson to file a civil action to enforce the Act absent express
statutory authorizations to do so, (2) the General Assembly vested
the power to implement and enforce the Act in the IDNR and the
Attorney General, (3) the General Assembly did not provide
statutory authorization for a private person to bring a civil
action to enforce the provisions of the Act, (4) the IDNR has
promulgated regulations to enforce the Act and Marion complied with
those regulations, (5) Glisson, as an individual, does not have
standing to enforce the Act, and (6) Glisson's alleged interest in
the subject matter of this litigation, which such interest
allegedly causes him to feel intellectual, spiritual, moral, and
psychic wounds, does not rise to the level of a case or
controversy.
During the pendency of the present appeal, the United States
Court of Appeals reversed the district court in Simmons II and
remanded the cause to the court with directions that the district
court void the second permit issued by the Corps. Simmons v.
United States Army Corps of Engineers, 120 F.3d 664 (7th Cir.
1997). In light of the Seventh Circuit's action, Marion moved to
dismiss the present appeal, arguing that it is moot. Specifically,
Marion maintains that because the section 404 permit has been
voided by the district court, it cannot continue with construction
of the dam and reservoir and it has in fact stopped all
construction activities. Glisson counters that Marion is still
proceeding with condemnation proceedings and is actively pursuing
another permit. We find that the present appeal is not moot and
hereby deny Marion's motion to dismiss.
On appeal, Glisson argues first that article XI, section 2, of
the Illinois Constitution of 1970 gives him standing to bring the
present action. Initially, we must address Marion's argument that
Glisson has waived this argument by failing to adequately present
and plead these issues before the trial court. Marion maintains
that Glisson did not argue the applicability of article XI in any
pleading and that he raised it for the first time at the hearing on
Marion's motion to dismiss. As Glisson points out, however,
standing is an affirmative defense, not a requirement of pleading.
Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 627 N.E.2d 760 (1994). It was not incumbent on Glisson to plead facts
demonstrating that he had standing. Rather, it was the
responsibility of Marion to argue Glisson's lack of standing. We
find that Glisson's argument that he has standing under article XI,
section 2, of the Illinois Constitution to maintain the present
action to be properly before us, and we now turn to an analysis of
the merits of the argument.
Glisson argues that he has standing under article XI, section
2, of the Illinois Constitution of 1970 to bring the present
action. Specifically, he contends that he has a constitutional
right to a healthful environment, that the preservation of
endangered and/or threatened species is necessary to the
maintenance of such environment, and that Marion's proposed
reservoir project will infringe on his right to such environment.
Since its passage, the courts of this state have had few
occasions to address the scope and meaning of article XI.
Consequently, there is little case law to guide us. We begin our
analysis by setting out the provisions of article XI.
Article XI, section 1, provides as follows:
"The public policy of the State and the duty of each
person is to provide and maintain a healthful environment for
the benefit of this and future generations. The General
Assembly shall provide by law for the implementation and
enforcement of this public policy."
Article XI, section 2, provides as follows:
"Each person has the right to a healthful environment.
Each person may enforce this right against any party,
governmental or private, through appropriate legal proceedings
subject to reasonable limitation and regulation as the General
Assembly may provide by law."
Because there is a paucity of case law interpreting these two
sections and because their meaning is relevant to the disposition
of this case, the report of the general government committee of the
Sixth Illinois Constitutional Convention is set out here in some
detail:
"This proposal recommends that the new Constitution
include an Environment Article with four Sections. It
generally expresses the Committee's view that there is a vital
need for the new Constitution to speak to the problem of
environmental pollution and that a constitutional expression
can contribute in substantial part to the resolution of the
problem ***.
Section 1.
Public Policy
The public policy of the State and the
duty of each person is to provide and maintain
a healthful environment for the benefit of
this and future generations.
***
*** The Committee selects the word `healthful' as best
describing the kind of environment which ought to obtain.
`Healthful' is chosen rather than `clean', `free of dirt,
noise, noxious and toxic materials' and other suggested
adjectives because `healthful' described the environment in
terms of its direct effect on human life while the other
suggestions describe the environment more in terms of its
physical characteristics. ***
* * *
Section 2.
Legislative Responsibility
The General Assembly shall provide by law for
the implementation and enforcement of this
public policy.
* * *
*** It is the Committee's intention in recommending this
Section (and the last phrase of Section 4[]) that the
Legislature play a leadership role in the efforts to solve
this problem as well as the entire realm of problems presented
by environmental pollution.
Section 3.
The Right
Each person has the right to a healthful
environment.
Expression of this fundamental right in the context of a
present and continuing crisis gives recognition to the problem
of environmental pollution as one of fundamental significance.
Even more importantly it provides the vehicle for the
individual to prosecute a violator. [Emphasis added.] ***
***
The word `environment' means the aggregate of all
conditions affecting the existence, growth[,] and welfare of
organisms.
While the emphasis is on the right of the individual in
this Section, the Committee did not mean to raise the
individual's interest in `healthful' environment to
pre[]eminence over the State's interest. The problem is of
equal concern to both. However, the State always has had the
power to deal with the problem[,] whereas the individual's
power to do so has generally been limited to those situations
in which he could prove damage in the traditional sense.
* * *
Section 4.
Standing
Each person may enforce this right against any
party, governmental or private, through
appropriate legal proceedings subject to
reasonable limitation and regulation by law.
[Emphasis added.]
This Section expresses the Committee's view that
individuals should not be denied the opportunity to seek
relief when so fundamental a right as that to a healthful
environment is involved. ***
The Committee emphasizes that this Section affords
individuals the opportunity to seek relief. [Emphasis added.]
It wants to be very clear that it does not, by this Section
(or by any Section in this Article for that matter) create or
establish a new remedy. Nor does this Section assume the
individual's ability to prove a violation of his right. It
merely declares that individuals have `standing' to assert
violations of his right. [Emphasis added.]
To illustrate, assume Mr. A. lives in a town whose
atmosphere is permeated with sulphur dioxide due to the
emissions of a local industry. If he filed suit against that
industry seeking to enjoin its sulphuric [sic] emissions, the
suit, under the present state of the law in Illinois, would
very likely be dismissed because Mr. A. could not show that he
is affected any differently by these emissions than the town
people as a whole. This is what is commonly called dismissal
for lack of `standing'. The theory is that a wrong or tort
which is suffered by the public in general is a public injury
which can only be asserted by the Attorney General. Unless an
individual can show that he is injured significantly different
than the public generally, unless he can show a `special
injury', he will be said to have no `standing' and will not be
afforded the opportunity to seek relief.
Because the wrong here has reached crisis proportions and
because it affects individuals in so fundamental a way, the
Committee is of the view that the `special injury' requirement
for standing is particularly inappropriate and ought to be
waived. Section 4[], therefore, allows the individual the
opportunity to prove a violation of his right even though that
violation may be a public wrong, or one common to the public
generally.
* * *
It must be emphasized that allowing standing does not
assume proof of the claim. *** Section 4[] merely affords
the individual the opportunity to prove his claim and to
convince the court or administrative body that he is entitled
to relief. This Section does not create any new remedies.
The individual will have available to him, if he can prove a
violation of his right and if he can establish he is entitled
to relief, only the traditional remedies of injunction or
declaratory judgment. It does not provide him with
compensatory (money) damages without strict proof of economic
injury (personal injury).
This Section clarifies that the individual may assert his
right `against any party, governmental or private', further
re[]enforcing the standing of the individual.
`Appropriate legal proceedings' is meant to include law
suits, administrative proceedings, and any other legal
proceeding.
The term `subject to reasonable limitation and regulation
by law' is included to emphasize not only the leadership
function the Committee envisions for the Legislature *** but
also the power of the General Assembly to reasonably limit and
regulate the declared ability of the individual to enforce his
right. The Committee conceives that a reasonable exercise of
this power would include a law which required the individual
to file any environmental claims with the Attorney General and
that only if he did not act could the individual file suits;
a law creating an administrative agency in which all claims
against pollutors [sic] would have to be filed, with judicial
review provisions; the creation of a special court, such as
traffic court, which would handle all pollution suits; or a
law requiring that all pollution suits be brought by the
Attorney General with the individual's right to intervene.
The Committee decided not to specify what it thought were
the appropriate limits of legislative limitation and
regulation. Rather, it selected the word `reasonable' so as
to allow for flexibility and adjustment in the future. The
power, of course, could not be exercised so as to effectively
deprive the individual of his standing." (Emphasis in
original except where otherwise noted.) Report of the
Committee on General Government, reprinted in the Proceedings
of the Sixth Illinois Constitutional Convention, at 696-705.
Sections 1 and 2 of the committee report became section 1 of
article XI, and sections 3 and 4 of the committee report became
section 2 of article XI.
Next, we review the law of standing. Along with the doctrines
of mootness, ripeness, and justiciability, standing is one of the
devices by which courts attempt to preserve for consideration only
those disputes which are truly adversarial and capable of
resolution by judicial decision. Dilanjian Taxi Service, Inc. v.
City of Chicago, 203 Ill. App. 3d 300, 560 N.E.2d 1195 (1990). The
purpose of the doctrine is to ensure that courts are deciding
actual, specific controversies and not abstract questions or moot
issues. In re Estate of Wellman, 174 Ill. 2d 335, 673 N.E.2d 272
(1996). The essence of the inquiry is whether a party is entitled
to have the court decide the merits of the dispute or particular
issue. Amtech Systems Corp. v. Illinois State Toll Highway
Authority, 264 Ill. App. 3d 1095, 637 N.E.2d 619 (1994). To have
standing, a plaintiff must present an actual controversy between
adverse parties, and as to that controversy, the plaintiff must not
be merely curious or concerned but must possess some personal
claim, status, or right. Potter v. Ables, 242 Ill. App. 3d 157,
610 N.E.2d 159 (1993). Although standing is designed to preclude
persons having no interest in a controversy from bringing suit, it
should not prevent a valid suit from being litigated. In re
Marriage of Rodriguez, 131 Ill. 2d 273, 545 N.E.2d 731 (1989). To
determine whether a plaintiff has standing, the pivotal factor is
whether the plaintiff will benefit from the relief sought. Martini
v. Netsch, 272 Ill. App. 3d 693, 650 N.E.2d 668 (1995).
With respect to the issue of whether a person has standing to
bring an action for the violation of a statute, it has been held as
follows:
"Where the suit alleges injury due to violation of a statue,
the doctrine of standing requires that the plaintiff be one of
the class designed to be protected by the statute, or for
whose benefit the statute was enacted, and to whom a duty of
compliance is owed. The object of the statute, the nature of
the duty imposed by it, and the benefits resulting from its
performance dictate what persons are entitled to sue
thereunder." Cardinal Glass Co. v. Board of Education of
Mendota Community Consolidated School District No. 289, 113
Ill. App. 3d 442, 445, 447 N.E.2d 546, 548 (1983), quoting
Lynch v. Devine, 45 Ill. App. 3d 743, 748, 359 N.E.2d 1137,
1140 (1977).
In Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 524 N.E.2d 561 (1988), our supreme court declined to adopt
the zone-of-interest test for standing. After reviewing the law of
standing and the zone-of-interest test, the court found that it
served no useful purpose. The court noted that the test often led
to confusion between standing and the merits of the suit. The
court also noted that with respect to violations of a statute, the
test would require an examination of the goals, purposes, and
objectives of the statute so as to determine whether the plaintiffs
were among its intended beneficiaries. The court further noted
that this was very similar to the test used to determine whether a
particular plaintiff's interest fell within the zone arguably
sought to be protected by a particular statutory provision. The
court chose to adhere to the principles that standing in Illinois
requires only some injury in fact to a legally cognizable interest
and that plaintiffs were not required to also prove that they are
arguably within the zone of interests to be protected or regulated
by the statute or constitutional guarantee in question. The court
held as follows: "[S]tanding in Illinois requires only some injury
in fact to a legally cognizable interest. [Citation.] More
precisely, the claimed injury, whether `actual or threatened'
[citation], must be: (1) `distinct and palpable' [citation]; (2)
`fairly traceable' to the defendant's actions [citation]; and (3)
substantially likely to be prevented or redressed by the grant of
the requested relief [citations]." Greer, 122 Ill. 2d at 492-93,
524 N.E.2d at 575. Traditionally, where the injury alleged is no
different than that suffered by the public at large, such injury is
insufficient for standing. Lynch, 45 Ill. App. 3d at 750, 359 N.E.2d at 1142. In the context of an alleged violation of the
right to a healthful environment, however, article XI, section 2,
gives individuals standing to sue for public wrongs.
In light of Greer, we believe that the traditional test for
determining whether a person has standing to sue for a violation of
a statute is no longer viable. The progenitor of the traditional
test was Lynch, a pre-Greer case. A review of the test set forth
in Lynch and followed by its progeny reveals that it is virtually
identical to the zone-of-interest test rejected in Greer. Both
require a plaintiff to be someone the statute was designed to
protect or benefit, and both require an analysis of the underlying
purposes of the statute in question. We are aware that the Lynch
test has been employed since Greer (see, e.g., Monroe v. United
States Fidelity & Guaranty Co., 237 Ill. App. 3d 261, 603 N.E.2d 855 (1992); Village of Leland ex rel. Brouwer v. Leland Community
School District No. 1, 183 Ill. App. 3d 876, 539 N.E.2d 750
(1989)), but it has not been analyzed in light of Greer. We
conclude that in order to have standing to sue for a violation of
a statute, a plaintiff need only meet the requirements set forth in
Greer.
Marion cites City of Elgin v. County of Cook, 169 Ill. 2d 53,
660 N.E.2d 875 (1995), for the proposition that a plaintiff must
have a legally cognizable cause of action in order to have
standing. In City of Elgin, our supreme court addressed what it
referred to as the plaintiff's "vague and unstructured allegations"
suggesting that the preliminary construction activities might
somehow violate article XI. Our supreme court found it unnecessary
to reach the issue of whether any of the plaintiffs would have
standing, holding instead that section 2 did not create any new
causes of action but, rather, did away with the "special injury"
requirement typically employed in environmental nuisance cases.
Therefore, the court concluded that while a plaintiff need not
allege a special injury to bring an environmental claim, there must
nevertheless still exist a cognizable cause of action. The court
noted that in the case before it, the injuries alleged amounted to
a fear that the environmental attributes of the "balefill" site
would be despoiled and, in the process, nearby wildlife habitats
would be damaged. Such allegations, the court held, were not
actionable absent a cognizable cause of action.
Marion's reliance on City of Elgin is misplaced. Standing was
never an issue in City of Elgin. The only reference to standing
was when the court stated, "While it is not clear which, if any, of
the original plaintiffs would have standing to assert a violation
of article XI of the Illinois Constitution, this question need not
be decided." City of Elgin, 169 Ill. 2d at 86, 660 N.E.2d at 891.
The court then held that the alleged injury did not constitute a
cognizable cause of action. A careful reading of City of Elgin
reveals that our supreme court did not hold that a cognizable cause
of action was necessary to have standing. Indeed, the court's
language implies that some of the original plaintiffs might have
had standing to allege a violation of article XI, but the court
found the issue to be irrelevant given that there was no cognizable
cause of action. Further, a holding to have held that standing
requires a cognizable cause of action would be a significant
departure from Greer. Had the court wished to make so fundamental
change to the law of standing, it would have been more explicit.
We also note that the court in Noyola v. Board of Education of
City of Chicago, 227 Ill. App. 3d 429, 592 N.E.2d 165 (1992), held
that it is not necessary for a plaintiff to satisfy the
requirements for stating a private cause of action in order to have
standing to sue for the violation of a statute. The court noted
that a private cause of action will be found to exist where (1) the
plaintiff is a member of the class of persons for whose benefit the
statute was enacted, (2) the plaintiff's injury is one the statute
was designed to protect, (3) a private right of action is
consistent with the underlying purpose of the statute, and (4) a
private right of action is necessary to provide an adequate remedy
for violations of the statute. Noyola, 227 Ill. App. 3d at 432,
592 N.E.2d at 167, citing Board of Education of City of Chicago v.
A, C & S, Inc., 131 Ill. 2d 428, 546 N.E.2d 580 (1989). Noting
that the requirements for stating a private cause of action were
very similar to the requirements of the zone-of-interest test
rejected in Greer, the court held that in light of Greer it was
inappropriate to require a plaintiff to meet the requirements for
a private cause of action in order to have standing.
Marion also cites Scattering Fork Drainage District in County
of Douglas v. Ogilvie, 19 Ill. App. 3d 386, 311 N.E.2d 203 (1974),
for the proposition that Glisson does not have standing. In
Scattering Fork, plaintiffs sought an injunction to prevent the
construction of a reservoir on the Embarras River. In one count of
the complaint, plaintiff Williams alleged, "[The Embarras River is]
unique economically, aesthetically[,] and recreationally *** and
constitutes part of the healthful environment of the people ***
including plaintiff", and he further alleged that as a citizen of
Illinois he had "a general property right to and interest in a
healthful environment which includes preservation of the Embarras
River as it presently exists generally and a particular right and
interest because plaintiff hunts game and wildlife whose survival
for that purpose is dependent entirely upon continued existence of
the said River as it presently exists because plaintiff will not be
able to continue said activities of recreation if defendants act
***." Scattering Fork, 19 Ill. App. 3d at 394, 311 N.E.2d at 210.
The trial court dismissed the complaint, finding that it failed to
state a cause of action. The appellate court affirmed, holding
that the allegation that the condition of the river was part of
plaintiff's "healthful environment" was unsupported by authority or
fact. The court further held that the connection between the
destruction of the habitat for the game and wildlife which
plaintiff hunted and the right to a healthful environment was too
remote to warrant the relief sought.
Marion's reliance on Scattering Fork is also misplaced.
Again, standing was not an issue in Scattering Fork. The trial
court dismissed the complaint because it failed to state a cause of
action, and the appellate court affirmed on that basis.
Plaintiff's standing was never challenged, and the court therefore
had no occasion to consider the subject.
To resolve the issue before us, we need not determine whether
Glisson has stated a cognizable cause of action. We need only
determine whether he has alleged an injury to a legally cognizable
interest. More correctly, we must determine whether Marion
successfully demonstrated that Glisson suffered no injury in fact
to any legally cognizable interest. We conclude that it failed to
do so. In its section 2-619 motion to dismiss, Marion argued,
inter alia, that Glisson did not have standing because (1) Glisson
"fail[ed] to allege any legally recognized interest in any
endangered or threatened Illinois species which would fall within
the zone of interest protected by the Illinois Endangered Species
Act", (2) Glisson was not a member of any class designed to be
protected by the Act, and (3) Glisson was not a person for whom the
Act was enacted and to whom a duty of compliance was owed. A
legally cognizable interest is a substantive, legally protected
interest, which is a right or interest either recognized by common
law or created by statute. Lynch, 45 Ill. App. 3d at 747-48, 359 N.E.2d at 1140. Article XI, section 2, of the Illinois
Constitution states that persons have the right to a healthful
environment. This creates a legally cognizable interest. Glisson
has alleged that this interest will be violated by the destruction
of the habitat of two endangered species. Given the breadth of the
language of article XI, the protection of endangered and threatened
species could arguably be part of a person's healthful environment.
We need not decide that question, however, given the procedural
posture of this case. As noted above, standing is an affirmative
defense. It was incumbent upon Marion to demonstrate that the
destruction of animals listed as threatened or endangered under the
Act was not an infringement of Glisson's right to a healthy
environment. It did not do so.
We wish to emphasize the narrowness of our holding. We hold
that because Marion failed to demonstrate that Glisson's right to
a healthy environment did not include the right to have endangered
or threatened species protected, he has standing to seek
declaratory and injunctive relief for violations of the Act. We do
not hold that his complaint, as currently drafted, states any
cognizable cause of action. Further, we do not address the
question of whether the right to a healthy environment encompasses
the right to protect endangered or threatened species. These
questions are not properly before us, and their resolution is not
necessary to the disposition of this appeal.
For the foregoing reasons, the judgment of the circuit court
of Williamson County is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
Appellee's motion denied; judgment reversed; cause remanded.
CHAPMAN and HOPKINS, JJ., concur.
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