TWELVE 
Thursday, September 20, 1923
If Charles Choate could have chosen the time to deliver a closing argument in defense of the virtues of a large American industrial corporation, he would have been hard-pressed to select a more opportune month than September 1923. The economy was expanding, production had reached new heights, Americans had money to spend, and Big Business, unencumbered by the government interference of the war years, was the roaring engine that was powering the prosperity.
September in Boston exemplified the economic optimism and confidence that was sweeping the country. More than a million people had traveled through the city over the Labor Day holiday, breaking all records. The travelers were lured by promising weather and improved business conditions, according to the Boston Herald. Railroads and steamships, their terminals jammed, “reached the limits of their resources and have thrown up their hands while hoping for the best” in their efforts to accommodate the vacationing public. Highways to the north, west, and south of Boston were filled, “miles distant … with a boiling current of motor cars … for 20 miles or more on most of the trunk roads, the greatest possible speed was a sluggish five miles an hour.”
Labor Day travel had been September’s first positive economic signpost in Massachusetts. Many others followed.
Textile mill owners predicted that their factories would be operating at full capacity for the fall months, which would mean full employment as well.
More than ten thousand people witnessed the opening of a new commercial airport in East Boston on September 8 that would transform Boston into an international aviation and economic center (and would one day be named for another prominent Boston judge-soldier, Lt. Gen. Edward Lawrence Logan).
Employees of the Boston Edison Electric Illuminating Company celebrated the company’s generation of a connected load of five hundred thousand kilowatts, enough power to light one hundred thousand homes or a continuous line of lamps set eighteen inches apart on both sides of a roadway from Boston to San Francisco.
And on September 18, just two days before Choate delivered his closing statement, the National Motor and Accessory Manufacturers Association Convention opened in Boston, with organizers predicting that nearly 4 million cars and trucks would be produced and sold in 1923, making it the “greatest year in the automotive industry’s history.” One Studebaker executive crowed: “The automobile is so interwoven into our national life that the production and sale of motor cars is a fixed and stable business that nothing can undermine.”
Textile companies. Electric companies. Aviation companies. Automotive companies. Charles Choate knew that these were reputable, established, rock-solid organizations that were responsible for America’s economic expansion and higher standard of living.
United States Industrial Alcohol was in the same class—a major employer, a leader in its industry, a national company with many smaller suppliers who depended on its success. To single USIA out, to find it liable for the molasses disaster and force it to pay exorbitant damages in this lawsuit, would be a step backward, a return to excessive government regulations and restrictions that contributed to the economic stagnation immediately following the war.
Again, Choate hoped Auditor Hugh Ogden would see it the same way.
“What is more plausible?” boomed Choate as he rose to begin his closing remarks. “Did this tank collapse because of structural weakness, or did it collapse because of an agency set in motion by some unknown third person who had access to it? This is where we come to; that is where we are at grips.” Choate suggested to Hugh Ogden that the choice was obvious, so long as Ogden could overcome his “reluctance to find that a thing was destroyed by dynamite in a civilized place like the City of Boston.”
Choate briefly countered the plaintiffs’ claim that the tank was improperly designed and constructed to withstand the weight and pressure of 2.3 million gallons of molasses. “The tank was built by experienced tank builders,” he said. “They had built thousands of them … the tank size presented no unusual problems to the Hammond Iron Works … it was designed by them with an experience of years and successful construction and maintenance behind them. There was no use of defective or improper material. There was no employment of unskilled or inexperienced men in the construction of this tank. It was a good workmanlike job, done by experienced, workmanlike people, out of first-class material.”
Beyond that, Choate argued, January 15, 1919, was “an ordinary winter day, without extreme wind or other extremes for our climate that all buildings did not withstand without the slightest consequence.” In addition, he pointed out that the tank had been “filled to capacity about a dozen times” before the accident happened [actually, seven times]. “If it did not have sufficient structural strength to withstand a load of molasses which was in it at the time of the disaster, it would have failed the first time that it was filled with a similar load.”
No, Choate said, a review of the evidence, circumstantial as it was, could lead only to the conclusion that dynamite destroyed the tank. Nor should the fact that the evidence was only circumstantial weaken the defendant’s case. “You haven’t got any evidence to the effect that a man went there and placed dynamite there,” Choate conceded, “but there are as many human eyes that saw a man place dynamite there, as human eyes saw the metal stretch and these pieces gradually give way.”
What was important for Ogden to consider, Choate argued, was the radical climate in Boston and the country at the time, the analysis USIA’s expert witnesses provided, the results of their experiments with the replica tank, and the testimony of Winnifred McNamara, the “closest eyewitness to the tank,” who saw a puff of white smoke near the manhole on the tank’s roof just before it collapsed.
“This tank was in a section of the city which the authorities had recognized required special guard during the existence of war time conditions,” Choate pointed out, in “danger of destruction from persons with perverted minds …”
Choate recounted the anarchist activity in Boston and emphasized that USIA’s role in the manufacture of munitions would have fueled the ire of violent anarchists operating in the North End. He reminded Ogden of the North End Police Station bombing. He stressed that a bomb had been discovered and disarmed at USIA’s Brooklyn plant before the Boston disaster, and that an “incendiary fire” had destroyed the Brooklyn facility not long afterward. He said that the company had lost two steamships at sea, “with no explanation … all we know is that one apparently broke in two and went to the bottom. The other one disappeared; nobody ever knew what became of it, and nobody ever heard of a living soul upon it.
“Then there is the evidence of the man who was there [Isaac Gonzales], of the telephone threat, where he was called up on the telephone and told that somebody was going to destroy the plant,” Choate said. “Evidently, somebody in the community, for some reason, wanted to destroy property used in this way … The threats against this property, the printed threats posted, threatening all property in that section of the city, present a most unusual background when you come to study the occurrence of a catastrophe like this.”
Again, Choate urged Ogden to suspend any disbelief he might have that anarchists could act so brazenly. “It is a surprising thing to find, and a man living in an orderly community can’t reconcile himself very quickly to the fact that there are people who think that way and are disposed to act that way, unless he is confronted by the fact that these things do happen. They happen in just this peaceable community in which we live …”
The results of the Baltimore experiments and the McNamara testimony offered additional powerful circumstantial evidence that an explosion was exactly what had happened on Commercial Street, Choate said. “In Baltimore, our experts built a tank and filled it with molasses,” Choate recounted. “They placed the dynamite carefully in the vicinity of the manhole. They lighted the fuse. White smoke came up—exactly the way Mrs. McNamara saw it in Boston in 1919. Then the charge was detonated and the tank split at the manhole, and a piece that weighed forty or fifty pounds was blown out forty or fifty feet by that explosion. You cannot get two accidents exactly alike, but it is illuminating … the effect of intentionally placing a charge of dynamite in relatively the same position as we believe it was placed in this [Boston] tank.”
Choate claimed that the Baltimore experiment lent credence to McNamara’s description of the scene she witnessed from the rooftop while hanging her laundry. “She was a perfectly respectable, worthy Irish woman, a little temperamental and a little restive under the cross-examination of the plaintiffs’ lawyers, but unquestionably honest and meaning to tell exactly the truth as she knew it … it is inconceivable that she could have imagined that particular phenomenon of the smoke coming out of the top of that molasses tank, unless it was there …”
Choate said Ogden’s responsibility, absent strong physical evidence on either side, “traces of which have all disappeared,” was to consider which scenario was most plausible in determining the cause of the Commercial Street disaster.
“One theory, so far as direct evidence is concerned, is just as good as the other,” Choate concluded. “[But] the experience of mankind in this region where this tank stood, is that there is a very great possibility of a destruction by explosion, just as we claim … the experience of mankind, so far as we have been able to get from the evidence in this case, is that there is a very remote possibility of a tank of this kind falling by its own structural weakness. Tanks vastly less strong have stood vastly more serious experiences and have not failed. Everybody agrees that this tank, in view of present knowledge, could have been built better than it was, but that doesn’t prove that it collapsed because it wasn’t strong enough to stand the stress. And that is the real bite of the case—whether, built as it was, it was stout enough to stand that stress, even if you could have built a better one.”
Choate rested his case, concluding his eloquent close just before 4 P.M. One of the plaintiffs’ attorneys, George L. Mayberry of the Boston Elevated Company, asked to express, “on the record … that we feel we have been favored by listening to an extremely able argument.”
The lead plaintiffs’ attorney, Damon Hall, said nothing for the record. But it was not lost on him, nor, he hoped, on Hugh Ogden, that Charles Choate had delivered his entire closing argument without addressing the deposition testimony of USIA assistant treasurer Arthur P. Jell.
In the nearly two hundred pages of trial transcript that recorded his close, Choate hadn’t even mentioned Jell’s name.
Monday, September 24, 1923
At precisely 10 A.M., Damon Everett Hall adjusted his spectacles, stood, and faced Auditor Hugh Ogden’s bench to deliver the most important closing argument of his professional career. Light rain, Boston’s first in more than three weeks, tapped against the window, the only sound in the otherwise hushed courtroom. Hall, the son of a Methodist clergyman, was approaching his forty-eighth birthday and had been practicing corporate and trial law in Boston since 1899. But never had the fate of so many depended on the strength of the case he would summarize today.
“There never was, and there never could be, any legitimate defense to this catastrophe,” he opened dramatically, “which in January of 1919, caused property damage to the extent of more than a million dollars, which brought pain and suffering to scores of people, and which blotted out the lives of more than a score of people, bringing death to them in one of its most horrid forms.”
Ridiculing the essence of USIA’s defense, Hall continued: “This alleged crime of a mythical anarchist, climbing at high noon up the side of a fifty-foot tank, in the heart of a busy city, with hundreds of people about, emerging to its roof, dropping in the manhole a mythical bomb after lighting the fuse, and then disappearing down the side of the tank in perfect peace and safety, through the railroad yard, and out into the city and then disappearing into thin air, is, I submit, nothing but the sheerest romance. Such crimes are generally committed in the dark by mortal men, not at high noon by ghosts. According to all of the experience of mankind, of course, when such crimes are contemplated or committed, they do not do it at open noon-day, with hundreds of people about, but they seek the darkness of night in which to do it.”
Hall called USIA’s claims a “ghostly defense,” citing the erratic testimony of Winnifred McNamara, the imprecise conclusions of the Baltimore experiments with the replica tank, and the contradictory testimony offered by state police chemist Walter Wedger. Hall said: “To the grand jury in 1919, Wedger had testified, ‘I am very much of the opinion that if the tank had had the proper factor of safety … there would not be any chance for the thing to give way.’ What was the court to make of this contradiction? I can’t attempt to account for what Wedger said on the witness stand here, that this tank was blown up by dynamite. It is inexplicable upon any theory of sanity or honesty—and no one questions Wedger’s sanity.”
Hall chided USIA for basing its entire defense upon a theory, without a shred of evidence that any “evilly disposed person” had been in the vicinity of the tank. “Defenses which are founded upon pure theory have done more to give a black eye to the administration of justice in our courts than all other kinds of defenses put together … the public is sick to death of theories, of the kind of insanity that comes at the moment of the crime and disappears the moment after the crime.”
The plaintiffs’ attorney handled the “anarchist defense” with sarcasm, claiming the anarchist was “an intelligent ghost, I have to admit, because he knew that the January bargain sales were on and, that for the first time in all of history, Mr. White, the [tank’s] caretaker, was to leave at twelve o’clock that day and go up town to meet his wife on a shopping tour, leaving the tank unattended.” Further, Hall said, the lack of broken glass outside of the windows that were smashed by the molasses wave also meant that, “these ghostly anarchists with their ghostly bombs produced ghostly dynamite explosions that we mortals have never heard of—and that is, the concussionless explosion.”
Hall said the defense’s claim, argued so ably by Charles Choate, “was a strain upon any man’s credulity.” The real cause of the molasses disaster was the negligence of the company, “inconceivable only in its sordidness and carelessness of human life, but in no other respect—it doesn’t require you to stretch your imagination and to go into the nether world … it is a claim based on common sense principles.”
The key plaintiffs’ contention, Hall said to Ogden, was that “from its inception in the mind of Arthur Jell, to its end, this tank, this structure, in the heart of a great city, planned and designed to hold 26 million pounds of liquid above the surface of the ground, was erected, operated, and maintained without a word of advice from any competent authority whatever, either as to its sufficiency for the purpose intended, or as to its condition during its life.”
The defense, Hall argued, tried to hide this fact from the outset of the hearings. “They didn’t tell you the facts about this tank. They left its birth and earlier years shrouded in complete mystery, and they did this deliberately and purposely because they were afraid to have the facts known … that this tank was constructed before we entered the war, when corporations were reaping the first rich profits of the war by the sale of goods to foreign governments … they wanted to keep that background from you. They rested their case without calling a living soul who was responsible for the erection of their tank … They hoped to slide through without this utterly sordid tale being revealed to you.”
USIA also fought the plaintiffs’ motion to compel Jell to testify, Hall pointed out, and then refused to let Ogden see “the man charged with the duty and responsibility of erecting this tank, and who lived with it until it fell … now I don’t blame them for that attitude, because the story that you get from Jell was, as I have said and repeated, one of the most sordid stories that it is possible to imagine, where everything was sacrificed for money. I don’t blame them for not wanting you to see him or hear him.”
Hall reviewed Jell’s testimony, first his inability to read plans and blueprints because he had “been a bookkeeper and accountant all of his life,” and then his decision not to consult anyone about the factor of safety. “Think of it!” Hall shouted. “Taking a shot in the air that way [on the factor of safety of 3], this man about to erect a tank to hold 26 million pounds, above the surface of the Earth, in a crowded section of the city! A clerk, a bookkeeper ordered to construct such an engine of destruction as this tank, given blanket authority to do it, but not knowing enough about plans or specifications to read them, and not even submitting these plans to a competent engineer. It is almost inconceivable, but those are facts. They had to erect that tank in a rush, because they were losing money by storing molasses elsewhere. We are not asking you to wander off into the realm of ghosts and hobgoblins.”
Jell and USIA compounded their negligence, Hall said, by failing to properly test the tank once Hammond Iron Works had completed the job. “So of course, this structure, planned and executed and thrown together as it was, leaked from the very start,” Hall said.
Jell’s ignorance of blueprints and construction practices also meant that he lacked the knowledge to recognize that the steel plates Hammond delivered did not conform to plans, Hall said (a fact that, by definition, also refuted Choate’s claim of Hammond’s integrity). Jell’s stubbornness and desire to keep USIA’s business running at “top speed” caused him to generally ignore the warnings of Isaac Gonzales and others that the tank “leaked each and every day.” And even though Jell ordered the tank caulked twice, Hall said his disregard for the soundness of the structure and the safety of the neighborhood was epitomized by his decision to paint the tank and “disguise” the flow of molasses down its sides.
“When you take this background into consideration, wouldn’t you expect this tank to leak?” Hall asked Ogden. “Actually, after you have heard this story, you are more likely to ask, ‘Great heavens! Did the tank stand at all?’ That is the first question you would ask.”
Not only was USIA guilty of negligence for the manner in which the tank was constructed, Hall argued that the company made matters worse by deciding to locate the fifty-foot-tall steel structure in the heart of a busy neighborhood. “You can’t collect and imprison such an enormous liquid volume above the surface of the ground, without realizing that if it gets loose, widespread devastation is going to follow,” Hall said. “If the thing is erected far from human habitation, you get property damage. If it is erected in the midst of the city, you get property damage and loss of life. If it is erected near a playground furnished by the city for children to play in, the effects of the thing getting loose are about as horrible to contemplate as a thing possibly could be.”
It was USIA’s desire for profits that led Jell, the company’s employee, to cut corners on safety, Hall argued, the ultimate cause of the Commercial Street tragedy.
“You have the company saying, ‘To hell with the public, give us the tank,’ and the attempt to save a few dollars comes into play,” Hall said. “So you have this man [Jell], trying to save a few dollars by not having an architect examine the plans. You have him trying to save a few dollars on the storage charges of molasses, and therefore having this tank put up as a rush job. And you have him disregarding the provision—the eminently wise provision—of a test of the tank, because the water would have cost them a few dollars … It shows absolute incompetence and an absolute and utter disregard of the rights of the public, of the people on the streets, of the people in the houses and buildings adjacent to where this structure was erected.”
Several hours after he had begun his closing argument, Hall summed up simply: “When I said that this was a sordid story, I submit that I was entirely right.”
Saturday, September 29, 1923
Damon Hall started and finished his close on Monday, September 24. After a few additional closing arguments during the week from lawyers for Boston Elevated and the City of Boston, Auditor Hugh Ogden declared the molasses flood hearings over on Saturday, September 29, 1923. It was the 341st day of testimony, concluding three years and one month after it had begun, and more than four and a half years after the disastrous flood. The trial was the longest and most expensive civil suit in Massachusetts history.
Nothing in the record indicates why Ogden held the final session on a Saturday, something he refrained from doing throughout the trial. Perhaps he did not want the marathon hearings to continue into a thirty-ninth month; perhaps he simply wanted to get it over with.
Whatever the reason, Ogden had heard from the last of the lawyers and the experts, the last of the eyewitnesses and the victims, the last of the doctors and the grieving relatives. Now he could review the exhibits and the twenty-five-thousand-page transcript at his own pace, in the quiet of his office, without interference, and write his final report for the court.
Technically, his opinion would be advisory in nature, but he knew he held the future of the case in his hands; his report would carry crucial weight in any litigation. If he found in favor of the plaintiffs, and awarded damages, USIA would almost certainly settle the case based on Ogden’s recommended amounts, rather than risk a jury using the auditor’s decision as ammunition to increase the damage awards significantly. As the Boston Globe noted calmly: “They [USIA and its insurance underwriters] do not believe that the aggregate claims would be very great, as the persons affected were, for the most part, of the wage-earning class.” If the auditor found in favor of USIA, the plaintiffs would face the daunting task of convincing a jury that he had ruled unjustly, an unlikely probability that would give even the feisty Damon Hall pause.
For all practical purposes, Hugh Ogden alone would decide the monstrous molasses flood case.
August 17, 1924, Paris, France
The invitation from the military governor of Paris had arrived at a good time.
For ten months, Hugh Ogden had pored over the transcripts from the molasses hearings, reviewing exhibits and underlining important portions of testimony. At the same time, he had resumed a near normal workload in his own law practice. A trip to France, with his wife, Lisbeth, and several members of the family, was a welcome break.
But this had been more than a pleasure trip. In recognition of his notable service during the World War, the French Republic had decorated Odgen with the Cross of Officer in the Legion of Honor, the highest decoration France could bestow for military service. The simple but impressive ceremony, followed by a state luncheon, had been held five days earlier at the Hotel des Invalides. In Boston, later in August, the French Consul General would present Ogden with the official certificate that accompanied the decoration.
Now, sitting in his own room at the Hotel Brighton after several days in Paris, Ogden penned a short note describing the honor to Horace Lippincott in the University of Pennsylvania alumni office: “My friends among the alumni will be interested in learning of a very inspiring occasion,” he wrote. Ogden had good reason to be proud; he was one of the few men who had received both France’s Legion of Honor decoration and America’s Distinguished Service Medal.
Once again, Hugh Ogden, the soldier, had been honored for his meritorious service.
Hugh Ogden, the auditor, would return home within days to begin writing his decision in the molasses flood case.
November 4, 1924
Calvin Coolidge was elected president in his own right, trouncing Democrat John W. Davis of West Virginia and Progressive Robert LaFollette of Wisconsin. With the country prosperous and at peace, with the integrity of the executive branch restored after the Harding scandals, the Republican slogan, “Keep Cool and Keep Coolidge” resonated with voters. Coolidge won 54 percent of the popular vote and 382 electoral votes, to 29 percent and 136 electoral votes for Davis, his closest opponent.
In his inaugural address on March 4, 1925, Coolidge trumpeted the country’s economic vitality: “We have sufficiently rearranged our domestic affairs so that confidence has returned, business has revived, and we appear to be entering an era of prosperity which is gradually reaching into every part of the Nation …”
Coolidge said that Democratic proposals for imposing excessive taxes upon business and the wealthy, while tempting, were counterproductive to the overall economy, detrimental to the poor, and contrary to the American way of life. “The method of raising revenue ought not to impede the transaction of business—it ought to encourage it,” he said. “We can not finance the country, we can not improve social conditions, through any system of injustice, even if we attempt to inflict it upon the rich. Those who suffer the most harm will be the poor. This country believes in prosperity. It is absurd to suppose that it is envious of those who are already prosperous … The wise and correct course to follow in taxation, and all other economic legislation, is not to destroy those who have already secured success, but to create conditions under which everyone will have a better chance to be successful.”
Alluding to his overwhelming victory at the polls, Coolidge added: “The verdict of the country has been given on this question. That verdict stands. We shall do well to heed it.”
April 28, 1925
Eight weeks after the inaugural, Auditor Hugh W. Ogden issued his own verdict.
In the wake of the president’s call for a vigorous pro-business climate in America, Ogden held that United States Industrial Alcohol, one of the nation’s largest industrial corporations, was liable for the collapse of the molasses tank on Boston’s waterfront.
Ogden’s fifty-one-page special report on liability, submitted to the Superior Court of Massachusetts, had the organization and detail one might expect from an author with a military background, and the fluid, often dramatic writing style that a lawyer would employ to argue his case.
Ogden rejected outright USIA’s claims of sabotage, citing the company’s failure to produce any evidence to support its claim. “No bomb or high explosive and no traces of a bomb or high explosives were discovered at or near the scene of the accident,” he wrote. “No anarchist or other evilly disposed person was seen at or near the tank upon the day of the accident. No evidence was offered to connect the [defendant’s] statements of fact [about anarchist activity in the area] … with this accident, its cause or effect …” Pointing out that the tank’s concrete foundation was not damaged at all, Ogden dismissed USIA’s claim that a ten-pound dynamite bomb could have been detonated inside the tank without making any impression in the foundation. And Ogden agreed with the plaintiffs’ contention that no “concussive force” accompanied the tank’s collapse, more evidence that no bomb had exploded: “Photographs taken upon the day of the accident, and within a few days thereafter, do not disclose any amount of broken glass in windows above the level of the first story (where the molasses wave reached).”
Absent evidence of an explosion, or any deliberate act to destroy the tank, Ogden said he was left to conclude that the tank collapsed due to structural weakness. While the auditor considered the testimony of the expert witnesses on each side, he did not attach great weight to their words, noting that their conclusions often canceled each other out. “Amid this swirl of polemical scientific waters, it is not strange that the auditor has at times felt that the only rock to which he could safely cling was the obvious fact that at least half the scientists must be wrong.”
Still, Ogden pointed out that the one area in which all the experts agreed was that the tank should have been built with a greater factor of safety. “From the outset, I am faced with the defense experts saying that, while in their opinion the tank was safe as built, they would not build it the same way if they were called on today to design a tank to hold the same load … I cannot help feeling that in their position the defendant’s experts do not quite have the courage of their convictions as stated … what justification can they have for [favoring] increasing the size of the plates, raising the factor of safety, and thus strengthening the tank if the tank was properly designed and ‘safe’ for every purpose for which it was designed?”
If the defendants’ experts admitted that they would have built a stronger tank, then USIA’s decision to use steel plates that were thinner than the plans called for appeared even more egregious in hindsight, Ogden said. Further, “no inspection was made of the tank by any architect, engineer, or any other person familiar with steel construction between the time it was completed, December 31, 1915, and the date of its collapse.” Refuting USIA’s claim that the tank was safe since it had been filled to capacity several times before its collapse, Ogden said: “Every time the tank was filled with molasses and emptied there was a bending back and forth of the lap joints which in time was bound to weaken the joints beyond the position of safety.”
Ogden reserved his harshest criticism for Arthur P. Jell and the USIA management that allowed him to oversee the project.
“He at no time visited any other plant which was in operation, he had no technical or mechanical training, could not read a plan or tell from an inspection of specifications what factor of safety was provided for in them, could not read a blueprint for the erection of a tank, consulted no engineer, builder, or architect as to what was a proper factor of safety, and made no investigation regarding what factor of safety ordinary engineering practice called for,” Ogden stated. “He made no personal investigation as to factors of safety, and did not talk with any representative of the Hammond Iron Works about factors of safety. He had blanket authority to enter into any necessary contract for the construction of the tank and the equipment to be used with it, given to him by the president of the defendant company.”
Jell and USIA compounded their negligence in late 1915 when “work was rushed (on the tank) so that it might be completed before the arrival of the steamer that was due on December 31. The only test which the tank received prior to the ship’s arrival was by running six inches of water into it. This was in part because there was no time, in part because in the opinion of Mr. Jell it would be too expensive, and in part because he did not think it was necessary.”
Perhaps most damaging to Jell and USIA, according to Ogden, was that once Isaac Gonzales and other “third parties” reported that molasses leaked from the tank’s seams, little was done to shore up the structure. In the section of his report entitled “Leaking at the Joints,” Ogden’s objective tone clearly becomes more accusatory, his anger toward USIA more evident.
“It does not seem conceivable that a responsible official of the defendant could have been definitely advised of danger from leaks of a tank of this description and failed to take any action whatever to guard against collapse … We have the testimony of a number of witnesses, most of whom were not plaintiffs or related to the plaintiffs, and all of whom testified to substantial leaks in the seams …” The fact that USIA ordered the tank caulked twice was insufficient action to prevent collapse, but “material evidence that the condition of the joints was being affected to their detriment by high stresses. I think if leaking in the joints was plain to third parties, it should have been plain to the defendant. It certainly existed long enough and was marked enough to have been brought to their attention.”
In his strongest and most emotional language in the report, Ogden said USIA should have recognized that “there was sufficient evidence of trouble available to a reasonably competent management to cause it to investigate and see whether something ought to be done in the interest of common safety. As a matter of fact, the repetition of these ‘weepings’ suggested nothing to [USIA] administration in Boston, and accordingly, nothing was done by the administration in New York. I cannot help feeling that a proper regard for the appalling possibility of damage to persons and property contained in the tank in case of accident demanded a higher standard of care in inspection from those in authority.”
Finally, Ogden declared, in many ways the design and construction of the tank was doomed from the beginning by historical circumstances. But far from absolving the company for this, Ogden strongly suggested that USIA used extraordinary world conditions to provide cover for its own negligence:
“The general impression of the erection and maintenance of the tank is that of an urgent job, the product of the world conditions in force at the time,” Ogden said. “In 1915 both steel and powder were high and going higher. There was an acute demand for both from the armies of Europe. The pressure upon our manufacturing concerns was enormous to turn out a maximum amount of steel and of explosives, and new plants and enlargements of old plants were in order from day to day. I believe that this plant was the product of the conditions of the time, and that to those who lived through those years, and kept their eyes and ears open to their lessons, this appears in the speed of its erection, the size of the plates, the nature of the joints, the omission of a strength test, the small factor of safety, and the absence of every kind of skilled technical supervision and inspection by the defendant—from the date the plates landed in Boston up to the time of the disaster.”
The auditor summed up his conclusion simply: “I believe and find that the high primary stresses, the low factor of safety, and the secondary stresses, in combination, were responsible for the failure of this tank.”
It is not entirely clear whether Charles Choate formulated his “anarchist defense” out of desperation—convinced that he had no other choice based on the evidence—or whether he felt that such a strategy would appeal to Hugh Ogden’s set of beliefs and, ultimately, influence the auditor’s decision in USIA’s favor. If Choate’s defense was based on the latter assumption, he had badly misjudged Hugh Ogden.
On the surface, Choate’s approach would appear logical. The auditor was educated, civic-minded, and well-to-do, and certainly would not have identified with the plaintiffs, a group of working-class Italian immigrants and Irish city workers. There is also no doubt that Ogden, as a soldier and a patriot, would have despised both the motives and methods of the anarchists. And, as a conservative businessman, he more than likely shared USIA’s concern about excessive government regulations and interference. Had he been a lesser man, the type of man Choate had counted on, one who let his personal feelings—and perhaps prejudices—guide his legal judgment, a ruling in favor of USIA would have been simple and generated little controversy.
But Ogden had a deeper set of beliefs, and they were grounded in a sense of fairness and justice. They had been formed early in his life, through the influence of his minister father and Ogden’s own interest in religion, and then strengthened by his years of military service and his love for the law. His religious training taught him to treat men with decency and dignity, regardless of their backgrounds or social standing. His years as an Army judge advocate, and a civilian attorney, taught him that adherence to the evidence was the only fair way to review and decide a case.
In the molasses case, the evidence was clear, and Ogden ruled the only way he could have. Though he never publicly stated his personal opinion on USIA’s defense strategy, he almost certainly would have been insulted that it was built entirely on speculation and innuendo, and perhaps worse, that it attempted to appeal to his perceived cultural and personal biases. Hugh Ogden was a bigger man than that. He had entered private law practice after his service in the World War determined to contribute to society, to make a difference, to help people. By basing his decision in the molasses case on the evidence alone, by refusing to be cowed or swayed by Charles Choate’s specious defense, by seeking and finding the truth, he had succeeded.
After finding against USIA on liability, Ogden turned to the damages portion of the case—the amount each victim or family of the deceased would receive. Again, these were advisory in nature and would set the stage for a jury trial, unless the two sides agreed to settle once they heard Ogden’s recommendations.
Ogden recommended an estimated $300,000 in total damages, equivalent to about $30 million today, still a relatively small sum considering the harshness of his report on USIA’s negligence. The small amount was most likely based on the low-income wage-earning status of most of the victims. The figure included an average of $6,000 to the estates of those who were killed, more than $25,000 to the City of Boston for the buildings in the North End Paving Yard, and another $42,000 to the Boston Elevated Railway Company, mainly for the damage caused to its overhead trestle and track bed.
There was an emotional aspect to Ogden’s damage awards; the auditor was put in a position of determining who “suffered” more in the disaster. Because their loved ones were killed instantly, for example, the families of Maria Distasio, Pasquale Iantosca, and Bridget Clougherty received $6,000 in damages (the Distasios received another $2,500 for the fractured skull suffered by Maria’s brother, Antonio, who survived). Firefighter George Layhe’s beneficiaries received $7,000, with the extra $1,000 for the pain and suffering he endured during his hours trapped under the firehouse, before he smothered when he was no longer able to hold his head up above the molasses.
The family of James McMullen, the Bay State Railway foreman who was scolding Maria Distasio the moment before the tank’s collapse, received $7,500, including $1,500 for pain and suffering. “He suffered with infection and delirium until the Sunday [after the flood],” Ogden noted. Relatives of Flaminio Gallerani, whose body was found under the pier eleven days after the accident, were awarded $6,300. “[His] fright and terror and mental revulsion against impending death, I find to be very great,” Ogden said.
For those who survived, Ogden also had to determine “degrees of suffering,” from property damage and minor injuries to permanent afflictions and conditions. To the family of a four-year-old girl who had been knocked down by the wave in her home and cracked her two front teeth, Ogden awarded $400, noting they were the girl’s “first teeth.”
Others received more. Martin and Teresa Clougherty were awarded $2,500 each for the injuries they received when their house was smashed (and another $1,800 for the destroyed house), with Ogden noting that Teresa “has been virtually housebound except to attend her mother’s funeral.” In her interrogatory, Teresa stated: “I have suffered since and am still suffering from the effects of my injuries, and I am informed that my sufferings are due to the shock. I have more or less constant handshaking, loss of sleep, loss of appetite, apprehension and nervous exhaustion.” Ogden awarded no money to Stephen Clougherty, who died in the insane asylum eleven months after the flood, concluding that the accident had “nothing to do with his death.”
Walter Merrithew, who was rescued by the deaf mute in the freight house, received $500 for an injured leg.
Ogden awarded firefighter Bill Connor $4,468, “including doctor bills,” for his injuries and pain and suffering. Connor, who was out of work for four months, eventually returned to light duty and was later assigned to the Fire Prevention Bureau.
Stonecutter John Barry, who had morphine injected into his spine three times as rescuers clawed to dig him out from under the firehouse, was awarded $4,000 by Ogden, who noted: “He will never be materially better. His back and knee will give him more or less pain as long as he lives.”
Damon Hall was ecstatic about the victory, but dissatisfied with Ogden’s damage awards. He promptly insisted on a jury trial to determine damages.
Charles Choate and the other USIA attorneys immediately offered to negotiate, and the two sides reached a “private” agreement within hours. “It was estimated that if the company had not settled, but permitted the case to go to trial and eventually lost, it would have lost hundreds of thousands of dollars in costs of court,” the Boston Globe reported. “It is estimated that a jury case would have taken six more months.”
The private agreement reached between USIA and the plaintiffs was made public when USIA reported its 1925 financial results. The company took a charge against profits of $628,000 “due to the Boston tank accident,” ultimately agreeing to damage awards more than double those that Hugh Ogden had recommended.
Damon Hall, the tough street-fighting lawyer who had agreed to represent a collection of poor immigrants and city workers against a large industrial corporation at the zenith of Big Business popularity in America, had demanded true financial justice from USIA—and got it without a jury trial.
In the process, Hall’s clients, the 119 plaintiffs, had received a double victory: Hugh Ogden’s verdict, and USIA’s speedy agreement to more than double the damage awards, itself a tacit admission of the company’s guilt.
More than ten years after Arthur P. Jell had secured the property on which to build the monstrous tank, more than six years after the tank had collapsed, spewing forth a crashing deluge of 2.3 million gallons of thick, viscous liquid across the Commercial Street waterfront, the Boston molasses flood trial had come to an end.
August 22-28, 1927
At 11:15 P.M. on August 22, Boston’s Charlestown prison, surrounded by eight hundred police, its walls and catwalks lined with machine guns and searchlights, was eerily silent. The streets around the prison had been roped off for a half mile, and those who lived within the area were ordered to stay indoors.
Across the Charles River, crowds gathered on the Boston Common in front of the State House, their eyes focused on the lights burning in the governor’s office.
Inside the prison, the warden walked into the death house, where Nicola Sacco was writing a letter and Bartolomeo Vanzetti was pacing in his cell. “I am sorry,” the warden said. “but it is my painful duty to inform you that you have to die tonight.” Vanzetti whispered in reply: “We must bow to the inevitable.”
A seven-year legal battle to stop Sacco and Vanzetti’s executions had failed. In May 1926, the Supreme Judicial Court of Massachusetts upheld their convictions and denied their motions for a new trial. Just two weeks ago, on August 10, 1927, Supreme Court Justice Oliver Wendell Holmes denied a request that he stay the executions, ruling that the case was a state, not a federal, matter. The Supreme Court denied a final petition on August 20.
Earlier this day, demonstrations protesting the executions had taken place across the country and in cities around the world. More than a hundred armed police officers surrounded the U.S. Capitol building in Washington, D.C., guarding against violence, and sixty miles away from Boston in Worcester, Massachusetts, a courthouse in which trial judge Webster Thayer was presiding over a criminal case was patrolled by armed troopers. In Paris, a general strike had halted traffic, and the American embassy was ringed with tanks to protect it from rioters. Large protests had also taken place in England, Switzerland, Germany, Italy, Portugal, Australia, Argentina, and South Africa, all to no avail.
Massachusetts governor Alvan T. Fuller left the State House shortly after midnight, unswayed by a bombardment of last-minute pleas to intervene and spare the two condemned men, including a long, tearful visit by Sacco’s wife and Vanzetti’s sister. “Good night, gentlemen,” he said as he passed through the group of waiting newspapermen gathered outside the State House.
At half past midnight, the morning of August 23, 1927, Sacco was strapped into the electric chair in the Charlestown prison, shouted “long live anarchy!” and then said quietly, “farewell my wife and child and all my friends.” The warden nodded and electricity surged through Sacco’s body.
Moments later, Vanzetti was led into the death chamber. He said softly: “I wish to say that I am innocent. I have never done a crime, some sins, but never any crime. I am an innocent man.” With that he shook hands with the warden and the guards and took his place in the chair. “I now wish to forgive some people for what they are doing to me,” Vanzetti said. He was dead minutes later.
The next afternoon, Dr. George Burgess Magrath, the medical examiner who had plodded through the molasses flood wreckage in his rubber hip-boots and later viewed the broken bodies of the flood victims in his morgue, performed the legally required autopsies on Sacco and Vanzetti. For several days, the bodies of the two anarchists lay in state at the Langone Funeral Home in Boston’s North End, where thousands of people visited to offer their respects.
On Sunday, August 28, thousands more congregated in the North End Playground, adjacent to where the molasses tank once stood, to take part in an eight-mile funeral procession across the city to Forest Hills Cemetery. More than two hundred thousand people thronged the route to pay tribute to the two Italian anarchists, “one of the most tremendous funerals of modern times—a gigantic cortege that marched over streets strewn with flowers …” reported the Boston Globe. “Never in this history of Boston has there been a demonstration quite like it.”
Sacco and Vanzetti were cremated shortly afterward.
With a few isolated exceptions, the anarchist movement, which provided U.S. Industrial Alcohol with the centerpiece of its unsuccessful defense in the molasses case, died with them.