"And/Or"

Most intelligent laymen regard the jargon of lawyers as an obvious trade trick, a professional pig-Latin calculated to obscure otherwise simple matters and impress clients with the indispensability of their services. Fortunately, most of their pompous verbal mumbo-jumbo is harmless tautology. But at least one legal usage-- "and/or"--is dangerous nonsense.

Many a suit at law has hinged on the interpretation of an "and/or." Usually the decision has gone against the drafter who slipped that literary whatnot into his contract. An early instance is a case decided in a British court on Feb. 8, 1855. A shipper named Gumming had accepted from a ship owner named Cuthbert a contract to provide one complete cargo of "sugar, molasses and/or other lawful products."

After Shipper Gumming had loaded on every puncheon of sugar and molasses the ship would hold, some odd space remained. He left it empty. Owner Cuthbert claimed he should have filled it with "other lawful products," brought suit for -L-139, 8s., 3 d. damages. The trial judge ruled that the ambiguous "and/or" in Owner Cuthbert's contract had rightfully entitled Shipper Cumming to do as he pleased about odd space.

Last winter Virginia's Carter Glass, as chairman of the Senate Appropriations Committee, found the Relief bill shot through with such befuddling phrases as "The President is authorized ... to make grants and/or loans and/or contracts." Flying into a fine rage, the peppery little Virginian marched out on the Senate floor, successfully defended his action in striking out "the idiotic expression 'and/or''; wherever it appeared in the bill. To his support Senator Glass summoned an impressive battery of opinion against "and/or."

"It is a bastard," said Lawyer John W. Davis, "sired by Indolence (he by Ignorance) out of Dubiety. Against such let all honest men protest."

"I am delighted," wrote onetime Attorney General George W. Wickersham, "that you have taken up the removal of this inaccurate monstrosity of expression from laws passed by the Congress of the U. S."

"The expression 'and/or' is a split personality, a grammatical psychopath," declared a Baltimore Sim editorial entitled "Grand 'And/Or' Old Carter." "If Senator Carter Glass can succeed in removing it at least from our Federal legislation, he will deserve the thanks of a confused and/or harassed populace."

Last week lovers of verbal clarity placed the eldest of the Wisconsin Supreme Court's seven Justices on a pedestal beside Senator Glass. Up for decision had been a complex case involving an insurance company which insured "C. D. Brower, Jr. and/or the Sturgeon Bay Company," against liability for accidents except "to any employe of the assured. . . ." Brower was a trucker who had contracted to do a job for Sturgeon. When a Sturgeon employe was injured in a collision with a Brower employe the insurance company tried to wiggle out of paying Brower's damages by arguing that the policy ran jointly and its "and/or" had really meant simple "and."

The decision was written by Justice Chester Almeron Fowler, a handsome, upstanding, straight-thinking gentleman who golfs, fishes, camps, walks 24-miles to his office every day and will probably celebrate his 73rd birthday this week by a brisk game of curling. Famed for his verbal vigor, old Justice Fowler growled in his insurance case decision:

"It is manifest that we are confronted with the task of first construing 'and/or,' that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients. We have ever observed the 'thing' in statutes, in the opinions of courts, and in statements in briefs of counsel, some learned and some not."

Ruling flatly against the insurance company, Justice Fowler declared: "If the construction given [by the Court] differs from the meaning actually entertained and intended to be conveyed by the company when it issued its policy, the company has only itself ... to blame, and it is justly penalized for attempting to express--or perhaps to conceal--the meaning intended by the use of a mere mark on paper."

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