Indiana Law Review INDIANA LAW REVIEW y VOLUME 11 1977-78 The Trustees of Indiana University Copyright © 1977, 1978 Indiana La^v Reviei;v Volume 11 1978 Clifford W . Browning Editor-in- Chief MILDRED L. Calhoun Christina L. Kunz DAVID L . SWIDER 1 Articles Editors DAVID R. ABEL FRANCES J. HONECKER John C. Bach Managing Editors Survey Editor Julia M. Blackwell THOMAS P. Malone Diane H. Kennedy Arvid L. Mortensen Michael p. Lucas JACK E. ROEBEL RODERICK L. MACDONALD WILLIAM M. SHARP Edwin B. Wainscott I Note and Development Editors JORDAN H. LIEBMANAORELLE J. ANCEL S. Brent Amon Challoner M. McBride Bryce H. Bennett SHERYL J. MCKINNEY Nancy F. Broyles ROBYN L. MOBERLY ROBERT A. Burns Kevin C. Murray Janet M. Carter Bert Paul Joseph L. Claypool Alan h. Raphael David S. Curry Anita R. Sakowitz Steven K. Deig Carolyn D. Schoenberg Paul H. Ellison Marc A. Silverstein ROBERT J. Ex Charles C. Smith Katherine I. Gerber Steven L. Smith David E. Gray David F. Snively John r. Halpin Joy r. tolbert Gary S. Harter Patricia P. Truitt MiLLiCENT E. Hatch Lex L. Venditti Julia b. Hirsch Alan e. Warrick Leslie A. Ladenheim Michael w. Wells Carol A. Leatherman Sarah M. Wolf Associate Editors | Paul j. Galanti I Faculty Advisor Indiana Laifv Revieiv Volume 11 1978 Number 1 Copyright & 1978 by the Trustees of Indiana University In Tribute: John S. Grimes Charles D. Kelso xiii Survey of Recent Developments in Indiana Law Table of Cases vi I. Foreword: Indiana's New and Revised Criminal Code . William A. Kerr 1 A. Change in Style 3 B. Revised Defenses 4 C. Definitions of Offenses 6 D. Sentencing 15 E. Additional Provisions 17 F. Conclusion 19 II. Administrative Law Gregory J. Utken 20 A. Administrative Rule Making 20 B. Administrative Fact-Finding 22 C. Scope of Review 23 III. Business Associations Paul J. Galanti 27 A. Securities Law Fraud 28 B. Covenants Not to Compete 35 C. Employment Contracts 38 D. Respondeat Superior and Independent Contractors 40 E. Partnership Duties 42 F. Statutory Developments 46 IV. Civil Procedure and Jurisdiction William F. Harvey 51 A. Jurisdiction and Service of Process 51 B. Pleadings and Pre-Trial Motions 58 C. Pre-Trial Procedures and Discovery 61 D. Trial and Judgment 65 E. Appeals 74 V. Constitutional Law Jeffrey W. Grove 78 A. Indiana Guest Statute Cases 78 B. Indiana Abortion Law Cases 85 C. Other Equal Protection/Due Process Cases 88 The INDIANA LAW REVIEW is the property of Indiana University and is published four times yearly, January, February, April, and June, by the Indiana University School of Law — Indianapolis, which assumes com- plete editorial responsibility therefor. Subscription rates: one year, $12.50; three years, $35.00; five years, $50.00; foreign $14.00. Single copies: annual Survey Issue, $6.00; other issues, $3.50. Back issues, volume 1 through volume 8, number 1, are available from Fred B. Rothman & Co., 57 Leuning Street, South Hackensack, New Jersey 07606. Please notify us one month in advance of any change of address and include both old and new addresses with zip codes to ensure delivery of all issues. Send all correspondence to Editorial Assistant, Indiana Law Review, Indiana University School of Law — Indianapolis, 735 West New York Street, Indianapolis, Indiana 46202. Publication office: 735 West New York Street, Indianapolis, Indiana 46202. Second class postage paid at Indianapolis, Indiana 46201. iA TTT r VI ^ VI. Contracts, Commercial Law, and Consumer Law Gerald L. Bepko 100 C A. Conditions in Contracts 100 B. Employee Discharge— Mitigation of Losses 101 C. Employee Bonus Plans— Consideration 102 D. Wholesaler Termination—Proof of Existence of an Agreement .... 103 E. Punitive Damages 105 I F. Parol Evidence Rule 107 5] G. Discharge of Sureties 108 ](\. H. Holder in Due Course 110 /. Debt Collection Practices Ill - J. Truth in Lending 119 E' VIL Criminal Law and Procedure M. Anne Wilcox 122 A. Search and Seizure 122 B. Pre-Trial Confrontations 127 C. Confessions and Admissions 128 D. Assistance of Counsel 132 E. Criminal Rule 4—Speedy Trial 134 F. Discovery 136 G. Conduct of the Trial Court 139 H. Defenses 141 /. Sentencing 145 VIII. Domestic Relations Helen Garfield 149 A. Adoption— Termination of Parental Rights 149 B. Dissolution of Marriage 157 - C. Enforcement of Alimony and Support Judgements 169 - D. Paternity 178 IX. Evidence William Marple 180 I". A. Opinions 180 : B. Privilege 182 tI C. Expert Testimony 183 D. Impeachment 185 X. Insurance Arvid L. Mortensen 187 A. Uninsured Motorist Coverage 187 B. Punitive Damages 192 C. Accidental Death 194 XL Labor Law Gregory J. Utken 196 A. Employment Discrimination 196 c B. Strikes and Injunctions 198 ^ C. Unemployment Compensation 199 .3 XII. Products Liability John F. Vargo 202 ' A. Landlord-Tenant Relationships 202 B. Pleadings and Parties 204 j: C. "Strict Construction" 207 1^ D. Indemnity 207 I E. Products and the Stream of Commerce 208 F. Negligence v. Strict Liability 210 G. Contributory Negligence and Assumption of Risk 210 H. Plaintiffs Burden of Proof and Types of Defects 212 /. Safety Devices, Foreseeability, and Misuse 212 J. Second Collision Theory and Design Defects 213 K. Warnings and Instructions 215 L. Compliance with Statute and Custom and Usage 218 XIII. Professional Responsibility Charles D. Kelso 219 A. Lawyer Advertising 219 B. Enforcement of the Code 223 L C. Conduct and Powers of the Prosecutor 228 lO D. Claims of Incompetent Counsel in Criminal Cases 229 XIV. Property Debra A. Falender 232 A. Landlord-Tenant Relationships 233 B. Adverse Possession and Partition 236 C. Real Estate Contracts 239 D. Survivorship Rights 241 E. Easements 244 F. Covenants 246 G. Condemnation 247 H. Horizontal Property Law 250 XV. Secured Transactions and Creditors' Riglits R. Bruce Tovunsend 252 A. Regulation of Financing Transactions 252 B. Real Estate Transactions 253 C. Security Interests in Personal Property 262 D. Creditors ' Rights 270 E. Suretyship 289 XVI. Taxation John W. Boyd 292 A. Death Taxes 292 B. Gross Income Tax 295 C. Legislative Developments 305 XVII. Torts Cory Brundage, Lynn Brundage 313 A. Intentional Torts 314 B. Negligence 317 C. Defenses 322 D. Loan Receipt Agreements 324 E. Damages 328 XVIII. Trusts and Decedents' Estates Debra A. Falender 330 A. Trusts 330 B. Wills 333 C. Intestate Succession 334 D. Guardianship 337 E. Fiduciary Duties 339 XIX. Workmen's Compensation Gregory J. Utken 340 A. Dual Capacity 340 B. Arising Out of and in the Course of Employment 342 C. Statutory Limitation Period 344 D. Necessity of Autopsies 346 E. Artificial Members 347 1977] VI TABLE OF CASES Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 316 Aikens v. Lash, 95 Anderson v. Indiana State Employees Appeals Commission, 77 Anderson v. State, 65, 140 Antrobus v. State, 138 Anuszkiewicz v. Anuszkiewicz, 241 Arnold v. Sendak, 87 Auto-Teria, Inc. v. Ahern, 72 B & T Distributors, Inc. v. Riehle, 28, 35 Bartlett v. Wise, 261 Batchelder v. Haxby, 88 Bates & O'Steen v. State Bar, 219 Baxtor v. Palmigiano, 96 Bennett v. Bennett, 167 Berkebile v. Brantley Helicopter Corp., 215 Bezell V. State, 149 Birkla v. State, 137 Bishop V. Wood, 97 Blakely v. Currence, 100, 241 Board of Directors, Ben Davis Conser- vancy District v. Cloverleaf Farms, Inc., 107 Booher v. Richmond Square, Inc., 233 Bowen v. Review Board of the Indiana Employment Security Division, 200 Bowyer v. Clark Equipment Co., 108, 291 Bradley v. Fisher, 320 Brady v. Eastern Indiana Production Credit Association, 75 Breed v. Jones, 143 Brown v. Heidersbach, 244 Brown v. Illinois, 132 Brown v. Merlo, 81 Brune v. Marshall, 90 Burger Man, Inc. v. Jordan Paper Pro- ducts, Inc., 65 Burhannon v. State, 125 Burkett v. Crulo Trucking Co., 40. 324 Cade V. State, 230 Cannon v. Oviatt, 82 Carroll v. State, 137 Cement— Masonry Workers Local 101 v. Ralph M. Williams Enterprises, 72 Chambers v. Public Service Co., 64 Charlie Stuart Oldsmobile, Inc. v. Smith, 328 Cheaney v. State, 85 Cissna v. State. 125. 140, 183 City of Bloomington v. Holt, 325 City of Elkhart v. Middleton. 60 City of Evansville v. Grissom. 67 City of Evansville v. Southern Indiana Gas & Electric Co., 24 City of Fort Wayne v. Cameron. 54 City of Indianapolis v. Heeter, 248 City of Indianapolis v. Satz, 55 Clark v. State, 126 Coleman v. United States, Department of Justice, 146 Colley V. Carpenter, 77 Confederation of Police v. City of Chicago, 97 Cook V. Mercury Lumber Co., 85 Cooley V. State, 135 Cornette v. Searjeant Metal Products, Inc., 207, 211, 212 Covalt V. Covalt, 161 Davila v. State. 142 Delaware Machinery & Tool Co. v. Yates, 346 Dickson v. State. 139 Dillon V. State, 125 Doe V. Bolton, 87 Dragstrem v. Obermeyer. 272 Dunn V. Blumstein, 99 Durham v. United States, 5 Edelmon v. Jordan, 82 Egan V. Finnegan, 154 Eisen v. Carlisle & Jacquelin, 56 Elliott V. State, 126 Equitable Life Assurance Society v. Crowe. 67, 194 Ernst & Ernst v. Hochfelder. 34 Ertel V. Radio Corp. of America. 269 Escola V, Coca-Cola Bottling Co., 203 Evans v. General Motors Corp.. 213 Ewing V. State. 148 Fail V. LaPorte County Board of Zoning Appeals. 262 VII INDIANA LAW REVIEW [Vol. ll:vi Farley v. Farley, 163, 168 Feggins v. State, 141 Flagle V. Martinelli, 334 Flora V. Flora, 157 Frankfort v. Owens, 323 Franklin v. Franklin, 164 Fultz V. State. 147 Garrett v. State, 182 Gary-Northwest Indiana Women's Ser- vices, Inc. V. Bowen, 87 Gerstein v. Pugh, 132 Geyer v. City of Logansport, 54 Gibson v. Henninger, 322 Gilbert v. Stone City Construction Co., 207, 211. 212, 218 G.M. leasing Corp. v. United States, 277 Golden v. Inland Steel Co., 342 Gr^y v. Dobbs House, Inc., 199 Great Western United Corp. v. Kidwell, 46 Green v. Klinkofe, 303 GTA V. Shell Oil Co., 245 Guido V. Baldwin. 76 Gulf Oil Corp. V. McManus. 56 Gutowski V. State, 138 Hammer v. State, 148 Hampton v. State, 139 Hardin v. State, 141 Hart V. State, 140 Haverstick v. Banet, 333 Henline, Inc. v. Martin, 67 Henson v. State, 128 Hibschman Pontiac, Inc. v. Batchelor, 105 Hickman v. Taylor, 63 Hicks V. Miranda, 82 Hoffa V. State, 148 Holmes v. Rushville Production Credit Association, 291 Howard v. State, 144 Howard D. Johnson Co. v. Parkside De- velopment Corp., 73, 246. 254 Huff V. Travelers Indemnity Co., 66 Huff V. White Motor Corp., 213 Hughes V. Hughes, 244 Hunter v. State, 66, 142 Hurwich v. Zoss, 239 Indiana Civil Rights Commission v. Merid- ian Hills Country Club. Inc., 196 Indiana Department of State Revenue v. Associated Beverage Co., 302 Indiana Department of State Revenue v. Indianapolis Transit System, Inc., 302 Indiana Department of State Revenue v. Sohio Petroleum Co., 295 Indiana Education Employment Relations Board v. Board of School Trustees. 24 Indiana Insurance Co. v. Noble, 188 Indiana & Michigan Electric Co. v. Miller, 347 Indiana State Board of Tax Commissioners V. Holthouse Realty Corp., 297 Indiana State Board of Tax Commissioners V. Lyon & Greenleaf Co., 74, 298 Indiana State Board of Tax Commissioners V. Philco-Ford Corp., 300 Indiana State Highway Commission v. Pappas, 235 Indiana State Symphony Society, Inc. v. Ziedonis. 38, 102 Individual Members of the Mishawaka Fire Department v. City of Mishawaka, 198 In re Adoption of Thornton, 153 In re Alliance Beverage Co., 285 In re Althaus, 223 In re Collar, 152 In re Conner, 224 In re Daley, 229 In re Estate of Bannon, 292 In re Marriage of Lewis, 159 In re Marriage of Lopp, 165 In re Marriage of Bobbins, 70 In re May, 74 In re Merritt. 225 In re Murray. 225 In re Noel. 224 In re Perkins. 150 In re Tabak. 225 In re Wallace. 224 In re Warden of Wisconsin State Prison, 96 In re Wardship of Bender, 155 In re Wood, 224 International Shoe Co. v. Washington, 52, 276 Jackson v. Bowen, 99 J.E.G. V. C.J.E., 122, 178 Jenkins v. State, 127 Jenkins v. Stotts, 146 Jos. Schlitz Brewing Co. v. Central Bev- erage Co., 103 Kavanagh v. Butorac, 322 Kaplan v. Vornado. Inc.. 33 Kelly V. Bank of Reynolds, 70 Kelsie v. State. 147 1977] TABLE OF CASES Vlll Kerns v. State, 229 Kottis V. United States Steel Corp.. 341 Kruse, Kruse & Miklosko v. Beedy, 265, 268 Kuhn V. Kuhn, 172, 281 Kurtz V. State, 141 Latimer v. General Motors Corp., 213 Leazenby v. Clinton County Bank & Trust Co., 289. 330 Lewis V. State. 183 Liggett V. Lee, 48 Long V. Anderson, 274 Loudermilk v. Feld Truck Leasing, 269 L.S. Ayres & Co. v. Indianapolis Power & Light Co., 24 Luckett V. State, 127 Ludy V. State, 144 Madison v. State, 124 Marlett v. State, 137 Marsh v. Marsh. 169 Maxey v. State. 135 McCollum V. Malcomson, 287 McFarland v. State, 134 McKoewn v. Calusa, 66 McLean v. Alexander, 34 McMahan Construction Co. v. Wegehoft Brothers, Inc.. 239 McNary v. State. 149 McNeely v. State. 144 Mims V. Commercial Credit Corp.. 275 Minor v. Condict. 76 Mirabal v. General Motors Acceptance Corp.. 119 Miranda v. Arizona. 125. 130, 179 Mitchell V. Drake, 314 Mitchell V. Texas Gulf Sulphur Co.. 33 Moore v. Linville, 258 Moorman v. Moorman, 43 Morris v. State, 138 Murphy v. State, 136 Needham v. Fred's Frozen Foods, Inc., 341 Nelson v. Butcher, 60, 261 Neofes v. Robertshaw Controls Co., 204 Newman v. Newman, 158 Newton v. Yates, 63 Nihiser v. Sendak, 59 Nissen Trampoline Co. v. Terre Haute First National Bank. 68. 215 Norfolk & Western Railway v. Hartford Accident & Indemnity Co., 192 Norris v. SUte, 128 O'Dell V. State Farm Mutual Automobile Insurance Co., 343 Ogle V. Wright, 260 Old Town Development Co. v. Langford, 202, 210. 234 Olshock V. Village of Skokie, 98 Oritz V. State, 130, 228 Overbeck v. Sears, Roebuck & Co., 252 Owens V. Owens, 173, 282 Paidle v. Hestad, 260, 288 Palmer v. State, 147 Patten v. Smith, 316 Pearson v. Hahn, 42, 339 Peters v. Davidson. Inc.. 35 Petroski v. Northern Indiana Public Ser- vice Co.. 208. 210, 321 Piel V. DeWitt, 236. 257 Pierson v. Ray. 320 Pioneer Lumber & Supply Co. v. First- Merchants National Bank. 258 Piper V. Chris-Craft Industries, Inc., 47 Planned Parenthood of Central Missouri v. Danforth. 87 P-M Gas & Wash, Co. v. Smith, 75 Public Service Co. v. Morgan County Rural Electric Membership Corp., 249 Fund V. Fund, 165 Ragnar Benson, Inc. v. William P. Jung- claus Co., 59 Ralston Purina Co. v. Detwiler. 265. 278 Reilly v. Robertson, 91 Reliance Insurance Co. v. Al E. & C, Ltd., 206, 207, 215 Rhim V. State, 85 Rhinebarger v. Mummert, 322 Richardson v. Brown, 61 Rieth-Riley Construction Co. v. McCarrell, 181 Roberts v. Watson, 53. 71, 233, 266 Robison v. State, 145 Roe V. Wade, 85 Salem Bank & Trust Co. v. Whitcomb, 252, 263, 318 Saloom V. Holder, 314 Schemel v. General Motors Corp., 213 Schloetter v. Railoc of Indiana, Inc., 226 Schuman v. State, 144 Schwartz v. Schwartz, 162 Seco Chemicals, Inc. v. Stewart, 74, 101 Shaffer v. Heitner, 52, 276 Shaunki v. Endsley, 281 IX INDIANA LAW REVIEW [Vol. ll:vi Sidle V. Majors, 79 Sills V. Massey-Ferguson, Inc., 216 Sissom V. Commodore Corp., 344 Skirvin v. Review Board of the Indiana Employment Security Division, 26 Smith V. Cook, 317 Smith V. Midwest Mutual Insurance Co., 188 Sparkman v. McFarlin, 58, 319 Spickelmier Industries, Inc. v. Passander, 102 Spugnardi v. State, 139 Stallings v. Dick, 211 Stanley v. Illinois, 155 State V. Church of the Nazarene, 248 State V. Elliott, 93 State V. Purdue National Bank, 294 State ex rel International Harvester Co. V. Allen Circuit Court, 54 State ex rel Keller v. Criminal Court, 136 State ex rel Schutz v. Marion Superior Court, 170 State ex rel Shaunki v. Endsley, 169 State ex rel Stanton v. Superior Court, 168 State ex rel Travelers Insurance Co. v. Madison Superior Court, 280 State ex rel Yockey v. Superior Court, 57 State Travelers Insurance Co. v. Madison Superior Court, 57 Stevens v. Norfolk & Western Railway, 318 Stevens v. State, 140 Stovall V. Denno, 128 Strawser v. Strawser, 281 Strickland v. State, 180 Sumpter v. DeGroote, 143 Sundstrand Corp. v. Sun Chemical Corp., 34 Taylor v. State, 145 Terry v. Ohio, 127 Third National Bank v. Impac Ltd., 276 Tomlinson v. Tomlinson, 157 Transport Motor Express, Inc. v. Smith, 22 Trimble v. Gordon, 335 Uhrich v. Uhrich, 175. 282 United States v. Harris, 185 United States Aircraft Financing, Inc. v. Jankovich, 285 United States ex rel Oritz v. Sielaff, 231 United States Steel Corp. v. Brown, 343 Union State Bank v. Williams, 256, 259 Vernon Fire & Casualty Insurance Co. v. American Underwriters, Inc., 190 Vernon Fire & Casualty Insurance Co. v. Matney, 62, 187 V.I.P. Limousine Service, Inc. v. Herider- Sinders, Inc., 22 Volid V. Volid. 157 Waitt V. Waitt, 160 Walker v. State, 142 Wallace v. State, 132 Walters v. Kellam & Foley, 183, 218 Warrick Beverage Corp. v. Miller Brewing Co., 107 Watson V. Watson, 157 Watts V. State, 141 Weenig v. Wood, 58, 68, 314 Wells v. Gibson Coal Co., 64 Western State Bank v. First Union Bank & Trust Co., 110 Wicks v. Ford Motor Co., 206, 207 Williams v. State, 130, 180 Wilson v. State, 134 Wolfe V. State, 146 Works V. State, 128 Wurn V. Haessly. 337 iferkes v. Washington Manufacturing Co., 70 Yoder Feed Service v. Allied Pullets, Inc., 271 Zanik v. State, 127 Indiana University School of Law — Indianapolis 1977-1978 ADMINISTRATIVE OFFICERS AND FACULTY John W. Ryan, Ph.D.. President of the University Glenn W. Irwin, Jr., M.D., Vice President of the University William F. Harvey, LL.M., Dean, Indiana University School of Law—Indianapolis G. Kent Frandsen, J.D., Assistant Dean, Indiana University School of Law—Indian- apolis. Marshall J. Seidman, LL.M., Assistant Dean for Administration and Finance, Ind- iana University School of Law—Indianapolis Thomas B. Allington, LL.M. (New York University, 1971), Professor (on leave, second semester. 1977-78) James F. Bailey, III. J.D.. M.A.L.S. (University of Michigan, 1964, 1970), Director of Library and Associate Professor Agnes Barrett, J.D. (Indiana University, 1964), Associate Professor Gerald L. Bepko, LL.M. (Yale University, 1972), Professor Bernard J. Boyle. J.D. (DePaul University. 1949). Visiting Associate Professor and Director of Clinical Education and Placement Clyde H. Crockett. LL.M. (The London School of Economics. 1972). Associate Pro- fessor Debra a. Falender. J.D. (Indiana University. 1975). Assistant Professor Cleon H. Foust, J.D. (University of Arizona. 1933). Professor (on loan, 1976-77) G. Kent Frandsen, J.D. (Indiana University, 1965), Assistant Dean and Associate Professor David A. Funk, LL.M. (Columbia University, 1973), Professor Paul J. Galanti, J.D. (University of Chicago, 1963), Professor Helen P. Garfield, J.D. (University of Colorado, 1967), Associate Professor Alan H. Goldstein, J.D. (Indiana University, 1969), Lecturer Harold Greenberg. J.D. (University of Pennsylvania. 1962). Associate Professor John S. Grimes, J.D. (Indiana University, 1931), Professor of Jurisprudence Emeritas Jeffrey W. Grove, J.D. (George Washington University, 1969), Associate Professor William F. Harvey, LL.M. (Georgetown University, 1961), Dean and Professor Lawrence A. Jegen, III, LL.M. (New York University, 1963). Professor William R. Jones. LL.M. (University of Michigan. 1970). Professor Henry C. Karlson. LL.M. (University of Illinois, 1977), Assistant Professor Charles D. Kelso, J.S.D. (Columbia University. 1968), Professor William A. Kerr, LL.M. (Harvard University, 1958), Professor Walter W. Krieger, Jr., LL.M. (George Washington University, 1969), Associate Professor William E. Marsh, J.D. (University of Nebraska, 1968), Associate Professor Melvin C. Poland, LL.M. (University of Michigan. 1950), Professor Ronald W. Polston, LL.B. (University of Illinois, 1958), Professor Gary A. Ratner, LL.M. (Yale University, 1974), Associate Professor Charles G. Reeder, J.D. (Indiana University, 1965), Lecturer Marshall J. Seidman, LL.M. (Harvard University, 1970), Assistant Dean for Adminis- tration and Finance and Professor William A. Stanmeyer, J.D. (DePaul University, 1966), Associate Professor (on leave 1977-78) Kenneth M. Stroud, J.D. (Indiana University, 1961), Associate Professor James W. Torke, J.D. (University of Wisconsin, 1968), Associate Professor R. Bruce Townsend, J.D. (University of Iowa, 1940), Professor of Jurisprudence James P. White, LL.M. (George Washington University, 1959), Professor (on leave) Harold R. Woodard, J.D. (Harvard University, 1936), Professorial Lecturer Indiana Law Review Volume 11 1978 Clifford W. Browning Editor-in-Chief Mildred l. Calhoun Christina L. Kunz DAVID L. SWIDER Articles Editors DAVID R. Abel Frances j. honecker Managing Editors JOHN c. Bach Survey Editor Julia m. Blackwell Diane H. Kennedy Michael p. Lucas roderick l. macdonald EDWIN B. Thomas p. malone Arvid l. Mortensen jack e. roebel WILLIAM M. Sharp WAINSCOTT Note and Development Editors S. Brent Almon Bryce H. Bennett Nancy f. broyles ROBERT A. Burns JANET M. Carter JOSEPH L. CLAYPOOL Steven k. Deig KATHERINE I. GERBER David e. Gray MiLLiCENT E. Hatch Leslie A. Ladenheim Carol A. Leatherman Associate Editors SHERYL J. MCKINNEY ROBYN L. MOBERLY KEVIN C. Murray Bert Paul Alan h. Raphael Anita R. Sakowitz Marc A. Silverstein Charles C. Smith joy r. tolbert Alan E. Warrick Michael w. Wells Sarah M. Wolf Paul j. Galanti Faculty Advisor YOLANDA C. Wilkes Editorial Assistant In Tribute: John S. Grimes Charles D. Kelso* There is no such thing as a partially executed will** Thus did John S. Grimes bring life to property and property to life. To those of us who have been with this law school for many years, it seems incredible that because of retirement John is no longer going to be a daily part of it. He will go on teaching through his writings, but the curtain has fallen on his masterful perfor- mances in the classroom. A good teacher should be something of an actor. John was Shakespearian. The King of England could not have pronounced his decrees with greater vigor than the common law was announced or denounced by Professor Grimes. His staccato delivery provided a perfect backdrop for his vivid allusions, his pungent examples, and the great sweep of background into which he fit the doctrines of the common law. His impact on students and his colleagues resulted from the fu- sion of five great strengths. The first is his razor-sharp intellect, evidenced early by graduating in 1929 from Indiana University with distinction (and Phi Beta Kappa). In 1931, he was graduated with distinction from the Indiana University School of Law, having been Coif, Editor-in-Chief of the Indiana Law Journal and number one in his class. To an intellect so honed, John added years of experience in the practice of law as Attorney and Assistant General Council of the Farm Credit Administration of Louisville; General Council of the In- diana Farm Bureau, Inc. and Affiliated Organizations; and General Counsel of General Grain, Inc. and Affiliates. Though his first love is English property law prior to the 1800's, he could always show how current issues in the courts and in law offices were close- ly analogous to or actually controlled by distinctions and rules that had their origin in early English common law or statutes. If they were not so related, he would show what changes in society had led to changes in the law. To the combination of powerful intellect and wide-ranging prac- tice experience, John Grimes added the fruits of copious scholarship. His students were hearing from a man who had surveyed the entire field and who had distilled for them the most important highlights and their relation to one another and to society. His works, usually multi-volumed, include: G. Thompson, Commentaries on the Modem Law of Real Property (repl. ed. J. Grimes 1964); G. Henry, The Pro- •Professor of Law, Indiana University School of Law— Indianapolis. **John S. Grimes. xiii bate Law and Practice of the State of Indiana (6th ed. J. Grimes 1954); and F. Clark, Law of Surveying and Boundaries (3d & 4th ed. J. Grimes 1959, 1976). In addition, he has published numerous law review articles on property, future interests, and probate. A fourth ingredient in the Grimes magic has been his interest in law reform. John has been Chairman of the Indiana Judicial Council; a member of the Indiana Trust Code Study Commission; a member of the Indiana Probate Code Study Commission; a fellow in the American College Probate Council; a member of the National Association on Surveying and Mapping; and a member of the American, Indiana, and Indianapolis Bar Associations. Thus, he has been in a position to talk knowledgeably on how reform has come about, what reform is in the offing, and how past efforts have either succeeded or fallen short. The fifth ingredient is the intangible factor of enthusiasm. John taught law with a relish. He really loves the law — and it showed. In class, in the hallway, or at lunch, he was ready at a moment's notice to explain how England had been saved from revolution by its pro- perty laws, how property law related to the industrial revolution, and the social and economic effects of enclosure. Never was he unsure. If the law was clear, John would state it clearly. If the law was in a state of doubt, John would build with relish upon the extent of that doubt and the reasons for alternative resolutions*. If John gravely said, "I don't know the answer," it seem- ed clear that no one knew and that perhaps the whole matter was unknowable until legal evolution had proceeded another step or two. He loved legal problems; he revelled in the processes of legal growth. Yet, I believe that the greatest impact of his mind on law students was to enhance their understanding of the social significance of organized legal doctrine. He hammered away on the idea that the common law of property was a bulwark of civilization and a high point in our profession's achievements. He made students proud to think of themselves as future lawyers and made them eager to join the long succession of people who have been members of our profession. John's written works will be teaching practicing lawyers for years to come. However, perhaps his most important legacy is in several generations of lawyers — almost thirty years of students who carried into the practice some of the intellectual and humanistic characteristics of Professor Grimes. John is a person who has lived the life of the law in grand style. He has captured that style in his teaching and instilled the same style in his students and colleagues. It is a pleasure to join in dedicating this issue of the Indiana Law Review to the continued contributions of Professor John S. Grimes. XIV