“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 ca
se.
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 Iris
h 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.
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