(concurring specially) :
This application for rehearing was pending when I became a member of this court. In order to rule upon it, I have studied brief of appellant on application for rehearing and the original opinion. Although I concur in the result overruling the application for rehearing, I think the application merits further consideration in view of the several contentions insisted upon.
The complaint sued on contains the following allegations:
“ * * * the defendants, Air Engineers, Incorporated, and/or Louis G. Mason, Jr., individually * * * did take over and assume jointly with the other defendant the obligations of this contract * * *.” [Emphasis supplied.]
It seems to me we must consider the meaning of the words “and/or.”
If the words are conjunctive, as appellant insists, the case must be reversed because it would then be a suit on a joint contract and failure to prove joint liability would create a fatal variance between pleading and proof. Cobb v. Keith, 110 Ala. 614, 18 So. 325; Central of Georgia Ry. Co. v. Camp Hill Trading Co., 208 Ala. 315, 94 So. 350; Haines v. Cunha, 217 Ala. 73, 114 So. 679.
But, I conclude the words “and/or” are disjunctive though their use has been condemned as “slovenly pleading,” “equivocal, uncertain, and indefinite” by other courts in Gurein v. State, 209 Ark. 1082, 193 S.W. 2d 997; Naidech v. Hempfling, 127 N.J.L. 430, 24 A.2d 524; Becker v. Burkes, 262 App.Div. 893, 28 N.Y.S.2d 850; Lee v. Douglas Gibbons & Co., 258 App.Div. 717, 14 N.Y.S.2d 938. Our Alabama Courts have stated their use to be “textually dangerous” in Pinkard v. Hastings, 41 Ala.App. 677, 149 So.2d 293, and “too indefinite and uncertain” in Moffitt v. Fitzpatrick, 270 Ala. 676, 121 So.2d 99, though their use in the latter case was held not demurrable.
The late Justice Foster, in Hays v. McCarty, 239 Ala. 400, 195 So. 241, found the meaning of these words to be in the disjunctive, that the words “and/or” mean either and or or. So, I conclude the allegation in this complaint alleges in the disjunctive. And, I find no fatal variance in failing to prove a joint contract, such as to require the affirmative charge for the appellant. I add, neither do I find the use of these words in this complaint to be subject to demurrer.
The other principal contention of appellant on application for 'rehearing is the use of defendant Totten’s deposition against appellant when Totten was present in court. There is no error herein as I see it. In *364Dunahoo v. Brooks, 272 Ala 87, 128 So.2d 485, this court held that Title 7, § 474(4) (b), Code of Alabama 1940, as amended, means that the deposition of a party may be used by the adverse party for any purpose. “No limitations whatsoever are placed upon the use. Accordingly the presence of the party in court does not affect the admissibility of that party’s deposition.” Although there was a sole defendant in that case, I see no valid distinction, under the facts of this case, where there are several defendants. Appellant against whom the deposition was offered had the oportunity to be present thereat, to call the deponent as his witness at trial, or to request the court to call him as the court’s witness. See Kissic v. State, 266 Ala. 71, 94 So.2d 202, 67 A.L.R.2d 530.