The Suits That Named No One

The complaint filed in the Court of Common Pleas of Cambria County in November 1889 named sixty-four defendants. It listed them by name. Andrew Carnegie. Henry Clay Frick. Andrew Mellon. Every member of the South Fork Fishing and Hunting Club whose identity the plaintiff’s attorneys had been able to establish appeared in the caption. The complaint alleged that the defendants had altered the dam. They had lowered the crest. They had narrowed the spillway. They had failed to repair the discharge pipes. They had permitted the breast to leak. The document ran to thirty-one pages. It demanded damages in the amount of $50, 000 for the widow of a man drowned in the flood.

Two weeks later, the club’s attorneys filed their response. Three pages. They did not deny that the dam had been altered. They did not deny that the defendants owned the property. They raised two objections. First, the defendants had not been properly served. The club was a corporation. The members were not individually liable for its debts or its torts. Second, the flood was an act of God. The rainfall of May 30 and 31 had been unprecedented. No human agency could have prevented the failure. The motion asked the court to dismiss.

The contrast between the two documents defined the legal terrain. The plaintiff’s complaint detailed a history of neglected maintenance spanning eight years. The defendant’s motion reduced that history to a single afternoon of weather. The complaint named names. The motion refused to accept that names were relevant.

The gap between the coroner’s finding and the engineers’ report, which had traveled together through the autumn of 1889, now entered the courtroom. The inquest had heard testimony from men who saw water trickling through the dam’s face. The engineers had measured the spillway and found it insufficient. Both accounts described the same failure. Neither account named a defendant the law could reach. The gap between the two would define everything that followed.

The blame that moved out of the relief camps and into the county courthouse in the autumn of 1889 reached its widest legal extent over the next four years, and this chapter follows that reach to the point where it stopped short. Its claim is that the Johnstown Flood produced no verdict against the men who owned the dam, not because the record was thin — the club’s minutes and deeds, the Cambria Iron warnings, the railroad telegrams, and the engineers’ findings were all in hand — but because the legal instruments of the period were built to protect precisely the kind of private arrangement the South Fork Fishing and Hunting Club represented.

The first wall was criminal. The district attorney of Cambria County presented evidence to a grand jury in the autumn of 1889. The evidence included the testimony of men who had watched water trickle through the dam’s face in the days before the flood. It included the calculations of engineers who had measured the spillway and found it insufficient. It included the correspondence between the South Fork Club and Daniel Morrell of Cambria Iron, who had warned the club’s officers about the dam’s condition in 1880 and 1881. The grand jury heard the evidence. It declined to indict.

The standard was intent. Criminal negligence required a showing that the defendants had acted with a conscious disregard of a known risk. The club’s members had not built the dam. They had purchased it. They had made repairs — the defense would say so, repeatedly. The repairs were inadequate. The spillway was too small. The crest was too low. But each of these facts required engineering judgment to establish. The members were not engineers. They were steel magnates, bankers, and railroad executives who used the lake for summer fishing. The law asked whether they had known the dam would fail. They had not known. They had been told it was safe. The club’s officer, Colonel Unger, had maintained that the dam was sound. The members had relied on his judgment. The grand jury found that this reliance, however negligent it might appear in hindsight, did not rise to criminal intent.

The criminal standard had a specific shape. It required the prosecution to prove that the defendants had known the dam was dangerous and had chosen to disregard that knowledge. The grand jury could not find this. The members lived in Pittsburgh. They visited the lake in summer. They fished. They ate at the clubhouse. They did not inspect the embankment. They did not read the discharge pipes. They did not measure the spillway. They had hired a man to do these things. The man had told them the dam was sound. The law called this reliance. It did not call it malice.

The grand jury’s refusal was a finding of insufficiency, not of innocence. The evidence showed neglect. It showed poor judgment. It showed a disregard of warnings. It did not show the kind of knowing disregard that criminal law required. The standard protected the kind of owner who delegates maintenance to an agent and trusts the agent’s report. The South Fork Club’s members were exactly that kind of owner.

The disagreement between the club’s defenders and the investigating engineers, which the inquest had put on the record, was never resolved by a court that had reason to resolve it. The American Society of Civil Engineers had published its report in 1891. The committee found that the dam’s failure was caused by the inadequacy of the spillway and the lowering of the crest. It found that the discharge pipes had been removed and not replaced. It found that the embankment had been patched with material inferior to the original.

The club’s defenders responded through counsel and through sympathetic newspapers. They said the rain was unprecedented. They said the dam had stood for decades. They said the engineers’ committee had been biased. These two accounts of the same failure existed side by side in the public record. No court examined them. No judge instructed a jury to choose between them. No jury was ever seated.

The ASCE report carried authority. Engineers had measured the dam’s remains and calculated the flow. Their findings were precise. The spillway could pass roughly half the water that a probable maximum flood would deliver. The crest had been lowered by as much as three feet. The discharge pipes had been removed and sold for scrap. The embankment had been patched with earth and rock that was softer and more permeable than the original material. These were not opinions. They were measurements.

The club’s defenders did not dispute the measurements. They disputed the conclusion. They said the dam had held for thirty years before the flood. They said the alterations had not caused the failure. They said the rain had caused the failure. The act of God argument, repackaged as engineering analysis. It required no measurements. It required no calculations. It required only the assertion that the storm was unprecedented and that no structure could have withstood it.

The two accounts remained unreconciled. The engineers said the dam failed because it was defective. The club said the dam failed because the rain was extraordinary. The law did not choose between them. The law did not require a choice. It required only that the plaintiffs prove their case. The existence of a competing account was enough to create doubt. Doubt was enough to defeat a civil claim.

The civil actions multiplied. By the spring of 1890, more than thirty suits had been filed in Cambria County Court. Each named individual members of the club. Each demanded damages for death or property loss. The amounts varied. Some sought $10, 000. Others sought $50, 000. The total exceeded two million dollars.

The plaintiff’s attorneys understood the obstacle. They were trying to hold individuals liable for the acts of a corporation. The South Fork Fishing and Hunting Club had been chartered as a nonprofit corporation under the laws of Pennsylvania. Its charter authorized it to acquire and hold property for the purpose of providing a hunting and fishing preserve. The members held shares. The shares conferred no ownership of the dam itself. The dam belonged to the corporation. The members’ liability was limited to the amount of their shares. The corporate form was designed to do exactly what it was doing.

The corporate form was the structure the members had chosen when they organized the club. They had purchased the dam through the corporation. They had held the land through the corporation. They had paid for repairs through the corporation. The form insulated their personal assets from the corporation’s liabilities. That was its purpose. It performed its purpose.

The attorneys tried several strategies. They argued that the club was not a corporation de facto. Its charter was for a hunting and fishing preserve. The dam was a nuisance. Maintaining a nuisance was not within the charter’s purpose. Therefore the corporate shield did not apply. The argument was creative. It failed. The court found that the club’s charter authorized it to hold real property. The dam was real property. Whether the club maintained it well or badly was a question of negligence, not of corporate purpose.

They argued that the individual members had personally participated in the decisions that caused the failure. The complaint alleged that the members had directed the lowering of the crest and the narrowing of the spillway. The evidence for this was thin. The club’s minutes, which the plaintiff’s attorneys had obtained, showed that the members had authorized expenditures for repairs. They did not show that the members had designed the repairs. They did not show that the members had ordered the spillway blocked. The work had been done by hired men under the supervision of the club’s resident officer. The members had not been present. They had not directed the work. They had paid for it.

The members’ absence from the dam was the structure of the arrangement, not a gap in the evidence. They had purchased a reservoir and an earthen embankment through a corporate entity. They had hired a resident manager to maintain it. They had visited in summer and departed in autumn. The dam stood in their absence. It leaked in their absence. It failed in their absence. The law of 1889 did not treat absence as culpable. It treated absence as ordinary. The absentee ledger was, in this sense, legally closed. The members had funded the operation. They had enjoyed its pleasures. They had not performed its labor. The law did not reach across that distance.

The plaintiff’s attorneys tried to establish that the members had been personally negligent in their oversight. They argued that the members had a duty to inspect the dam. They had a duty to hire competent engineers. They had a duty to heed the warnings they had received. The court did not accept these duties. The members were shareholders. Shareholders did not inspect corporate property. Shareholders did not hire engineers. Shareholders elected officers. The officers hired agents. The agents performed the work. The chain of delegation was long. Each link insulated the member from the act.

The act of God defense traveled through the civil cases with the same force it had carried in the criminal proceedings. The defense attorneys cited the rainfall. The storm of May 30 and 31 had dropped an extraordinary volume of water on the Little Conemaugh watershed. The defense produced records from the Weather Bureau. It called witnesses who described the rain. The argument was that no dam, however well maintained, could have withstood the inflow.

The doctrine of the act of God had a specific legal meaning. It referred to a natural event of such force and unpredictability that no human precaution could have prevented the resulting harm. The defense argued that the storm of May 1889 met this standard. The rainfall had been unprecedented in the recorded history of the region. No dam builder could have anticipated it. No maintenance regime could have prepared for it. The failure was therefore not the result of human negligence. It was the result of natural force.

The plaintiff’s attorneys countered with the engineers’ findings. The spillway, even in its original configuration, could not have passed the flow. But the original dam had been higher. The original spillway had been wider. The original discharge pipes had been functional. The dam as the club had maintained it was substantially less capable than the dam as the Commonwealth had built it. The difference was the fault of the defendants.

The strongest argument the plaintiffs had required the court to compare two conditions of the same structure. It required the court to find that the alterations had materially reduced the dam’s capacity. The engineers’ report supported this finding. The club’s minutes supported it. The Cambria Iron correspondence supported it. The evidence was not thin.

The defense responded that the rain would have overwhelmed the original dam as well. No one could know. The original dam had never been tested by a storm of this magnitude. The argument was speculative. It was also effective. It introduced uncertainty. It gave the court a reason to say that the plaintiffs had not met their burden of proof. The rain had an independent causal life in the law. It did not erase the dam’s deficiencies. But it complicated the chain of causation enough to make a verdict uncertain.

The causal question was simple to state and impossible to answer with certainty. Would the original dam have survived the storm? The engineers said probably not. But the original dam had been higher. The original dam had wider discharge capacity. The original dam had functional outlet pipes. The engineers could not say with certainty that the original dam would have failed. The uncertainty cut in the defense’s favor. The plaintiffs bore the burden of proof. They had to show that the alterations caused the failure. If the original dam would also have failed, the alterations did not cause the failure. The rain did.

The first civil case to reach a hearing was filed on behalf of the estate of John G. Brown. Brown had drowned in the flood. His widow sought damages from the individual members of the club. The case was argued before a judge in Cambria County in 1891. The plaintiff’s attorney presented the engineers’ findings. He presented the Cambria Iron correspondence. He presented the testimony of witnesses who had seen the dam leaking. The defense presented the rainfall records. It presented the corporate charter. It presented the testimony of Colonel Unger, who said the dam had been maintained in good condition.

The judge sustained the defense’s objection to individual liability. The members were not personally liable for the acts of the corporation. The case was dismissed. The plaintiff’s attorney appealed. The appeal was heard by the Superior Court of Pennsylvania in 1892. The Superior Court affirmed the dismissal. The corporate form held.

A second case was filed in federal court. The plaintiff’s attorney argued that the diversity of citizenship between the Pennsylvania plaintiffs and the Pittsburgh defendants gave federal jurisdiction. The case was heard in the United States Circuit Court for the Western District of Pennsylvania. The federal judge applied the same reasoning. The corporate form shielded the members. The case was dismissed.

A third case was filed against the club itself, as a corporation. This case avoided the problem of individual liability. It sued the entity that owned the dam. The club’s attorneys responded that the club’s assets were minimal. The clubhouse, the boats, the fishing tackle. The total value was perhaps $5, 000. The dam had no independent value. It was an earthen embankment on land the club leased. The plaintiffs sought damages totaling hundreds of thousands of dollars. The club could not pay. A judgment against the club would be a judgment against an empty shell.

The plaintiff’s attorneys understood this. They filed the case anyway. They wanted a verdict. They wanted a court to say that the club was negligent. They wanted a finding on the record. The case dragged through procedural motions for two years. The club’s attorneys filed demurrers. They filed motions for change of venue. They filed motions to strike. Each motion consumed months. Each increased the cost of litigation. The plaintiffs’ resources were limited. Many of the survivors had lost everything in the flood. They could not fund years of legal work.

The cost of litigation was itself a defense. The club’s members had access to the best attorneys in Pittsburgh. They could fund motions, appeals, and delays indefinitely. The survivors could not. Each continuance reduced the number of active plaintiffs. Each procedural ruling narrowed the scope of the claims. The legal system processed the cases at a pace that favored the party with resources. The club had resources. The survivors did not.

The cases thinned. By 1892, the number of active suits had dropped from thirty to fewer than ten. By 1893, the number was below five. Some were withdrawn. Some were settled for nominal amounts. None went to a jury.

The settlements were pragmatic surrenders, not admissions of liability. The survivors needed money. The club offered small sums. The survivors accepted. In exchange, they released their claims. The releases extinguished the legal record of the harm. The money was not compensation. It was the price of silence.

The legal system had not found the club’s members innocent. It had found that it could not reach them. The distinction mattered. The engineers’ report remained on the record. The coroner’s inquest remained on the record. The Cambria Iron correspondence remained on the record. The evidence was intact. The law had declined to convert it into a verdict.

The deferred-maintenance debt — the accumulated cost of neglected upkeep, transferred from those who owned the structure to those who lived below it — was, in this sense, legally forgiven. The valley had paid it. The members had not. The law said this was not a debt the courts could collect.

The failure of the lawsuits was a series of encounters between the same evidence and different procedural walls. The criminal grand jury encountered the wall of intent. The civil plaintiffs encountered the wall of the corporate form. The act of God defense encountered the wall of causation. Each wall was independent. Each was sufficient. Together they formed a structure that no amount of evidence could penetrate.

The rain fell on May 30 and 31, 1889. It fell on a dam that had been lowered, patched, and stripped of its discharge pipes. It fell on a spillway that had been narrowed and blocked with screens. It fell on a reservoir that had been filled to capacity. The rain was extraordinary. The dam was not. The dam failed because it was not the dam it had been. The engineers said so. The coroner said so. The minutes of the club said so. The correspondence with Cambria Iron said so. No court said so.

The last case was dismissed in 1893. The plaintiff’s attorney packed the file. The engineers’ report sat in the court’s record, unread by any jury. The dam was gone. The lake was drained. The club’s members were alive, wealthy, and free of judgment. The valley was rebuilding. The courthouse was quiet. The gap between what the record showed and what the law could do was the only thing left.