Dark Tide (39 page)

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.

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.”

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.