Eimann v. Soldier of Fortune Magazine, Inc.

• Decision Date: 17 August 1989
• Docket Number: No. 88-2499,88-2499
• Citation: 880 F.2d 830
• Parties: , 16 Media L. Rep. 2148 Marjorie A. EIMANN, Individually, as Next Friend of Gary Wayne Black, and as Representative of the Estate of Sandra Kay Black, Deceased, and Glenn G. Eimann, Plaintiffs-Appellees, v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 830

880 F.2d 830

58 USLW 2142, 16 Media L. Rep. 2148

Marjorie A. EIMANN, Individually, as Next Friend of Gary Wayne Black, and as Representative of the Estate of Sandra Kay Black, Deceased, and Glenn G. Eimann, Plaintiffs-Appellees, v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Inc. Defendants-Appellants.

No. 88-2499.

United States Court of Appeals Fifth Circuit.

Aug. 17, 1989.

Larry D. Thompson, Lance Olinde, Jr., Houston, Tex., E. Barrett Prettyman, Jr., Hogan & Hartson, William P. Flanagan, John G. Roberts, Jr., David G. Leitch, Washington, D.C., Robert Bruce Miller, Boulder, Colo., for defendants-appellants.

John Roberson, Ronald G. Franklin, Deanna H. Livingston, Houston, Tex., for plaintiffs-appellees.

Phelps, Dunbar, Marks, Claverie & Sims, Luther T. Munford, Jackson, Miss., Jack M. Weiss, New Orleans, Leonard H. Freiman, Falls Church, Va., Anne R. Noble, Baker & Hostetler, Bruce W. Sanford, Washington, D.C., for amicus curiae American Newspaper Publishers Ass'n.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Soldier of Fortune Magazine, Inc. appeals a $9.4 million jury verdict against it in a wrongful death action brought by the son and mother of a murder victim. The jury found that Soldier of Fortune acted with negligence and gross negligence in publishing a personal services classified advertisement through which the victim's husband hired an assassin to kill her. We reverse the judgment entered on the jury's verdict.

I. FACTS

John Wayne Hearn shot and killed Sandra Black at the behest of her husband, Robert, who offered to pay Hearn $10,000 for doing so. Robert Black contacted Hearn through a classified advertisement that Hearn ran in Soldier of Fortune Magazine, Inc. (SOF), a publication that focuses on mercenary activities and military affairs.

The ad, which ran in the September, October and November 1984 issues of SOF, read:

EX-MARINES--67-69 'Nam Vets, Ex-DI, weapons specialist--jungle warfare, pilot, M.E., high risk assignments, U.S. or overseas. (404) 991-2684.

Hearn testified that "Ex-DI" meant ex-drill instructor; "M.E." meant multi-engine planes; and "high risk assignments" referred to work as a bodyguard or security specialist. Hearn testified that he and another former Marine placed the ad to recruit Vietnam veterans for work as bodyguards and security men for executives. Hearn's partner testified that they also hoped to train troops in South America. This partner never participated in any ad-related jobs and quit the venture shortly after the ad first ran.

Hearn and his partner testified that they did not place the ad with an intent to solicit criminal employment. However, Hearn stated that about 90 percent of the callers who responded to the ad sought his participation in illegal activities including beatings, kidnappings, jailbreaks, bombings and murders. It also generated at least one lawful inquiry from an oil conglomerate in Lebanon seeking ten bodyguards; Hearn received a commission for placing seven men with the company.

Between early 1982 and January 1984, Black had asked at least four friends or coworkers from Bryan, Texas to kill Sandra Black or help him kill her. All four refused. Black called Hearn in October 1984 after seeing his ad in SOF.

Hearn testified that his initial conversations with Black focused on Black's inquiries about getting bodyguard work through Hearn. In later calls they discussed the sale of Black's gun collection to Hearn. Hearn testified that he traveled from his home in Atlanta to Black's home in Bryan on January 9, 1985 to look at Black's gun collection. Hearn stated that Black discussed his plans for murdering his wife during the meeting and "hinted" that he wanted Hearn to participate, but did not ask Hearn directly to kill his wife. Hearn did not act on the hint and returned to Atlanta.

Black called Hearn repeatedly after Hearn returned to Atlanta. During one call Black spoke with Hearn's girlfriend, Debbie Bannister. Hearn and Bannister met after she called him in response to his SOF ad.

Black proposed directly that Hearn kill his wife during the call to Bannister. She passed the proposal on to Hearn, who called Black and said he would consider doing it. The two talked by phone several times in the following weeks. After an aborted murder attempt about three weeks later--during which Hearn was to help Black himself kill his wife--Hearn killed Sandra Black on February 21, 1985. By that time Hearn also had killed the ex-husband of Bannister's sister on January 6, 1985 and Bannister's husband on February 2, 1985.

Neither Hearn, who was sentenced to concurrent life sentences for the murders, nor his partner had criminal records when they placed their ad in SOF. Neither had received a dishonorable discharge from the Marines. Further, Hearn included his real name and correct address in submitting the ad to SOF; the ad itself listed Hearn's correct home telephone number.

Sandra Black's son, Gary Wayne Black, and her mother, Marjorie Eimann, sued SOF and its parent, Omega Group, Ltd., for wrongful death under Texas law on the theory that SOF negligently published Hearn's classified ad.

Eimann introduced into evidence about three dozen personal service classified ads selected from the 2,000 or so classified ads that SOF had printed from its inception in 1975 until September 1984. Some ads offered services as a "Mercenary for Hire," "bounty hunter" or "mechanic"; others promised to perform "dirty work," "high risk contracts" or to "do anything, anywhere at the right price."

Eimann presented evidence that seven and perhaps as many as nine classified ads had been tied to crimes or criminal plots. Eimann introduced stories from sources including the Associated Press, United Press International, The Rocky Mountain News, The Denver Post, Time and Newsweek that reported on links between SOF classified ads and at least five of these crimes.

Eimann also presented evidence that law enforcement officials had contacted SOF staffers during investigations of two crimes linked to SOF personal service classifieds. In one case, SOF had provided correspondence from its files--along with two affidavits signed by SOF's managing editor--that were used in the 1982 criminal trial of a Houston man who was convicted of soliciting the murder of his wife; during his effort the man had tried to hire a poisons expert by placing a classified ad in the October 1981 issue of SOF. Eimann also presented testimony from a New Jersey detective, who stated that in April 1984, SOF's advertising manager had helped him to identify a man who placed a classified ad in SOF.

In addition, Eimann presented expert testimony from Dr. Park Dietz, a forensic psychiatrist who had studied SOF, its ads and readership. Dietz testified that an average SOF subscriber--a male who owns camouflage clothing and more than one gun--would understand some phrases in SOF's classified ads as solicitations for illegal activity given the "context" of those ads.

That context included other classified ads in SOF, display ads for semiautomatic rifles and books with titles such as "How to Kill," and SOF articles including "Harassing the Bear, New Afghan Tactics Stall Soviet Victory," "Pipestone Canyon, Summertime in 'Nam and the Dyin' was Easy," and "Night Raiders on Russia's Border." Dietz also described his visit to a SOF convention in summer 1987, where he photographed exhibits of weapons and tactical gear.

Based on his studies, Dietz concluded that the Hearn ad "or any other personal service ad in Soldier of Fortune in 1984 foreseeably is related to the commission of domestic crimes." He suggested that classified ads such as Hearn's would not carry such connotations if they appeared in Esquire or Vanity Fair.

Dietz conceded, however, that he had abandoned an effort to distinguish lawful SOF classified ads from criminal ones on the basis of specific code words such as "gun for hire," "mechanic" and "hunter" because some ads were too ambiguous to assign an illegal meaning to them with any certainty. He also noted that crimes had been linked to SOF classified ads that "seemed relatively innocuous." For example, one ad tied to a kidnapping and extortion plot read:

Recovery and collection. International agents guarantee results on any type of recover[y]. Reply to Delta Enterprises, P.O. Box 5241, Rockford, Illinois 61125.

As Dietz stated, "The code system doesn't work."

SOF relied primarily on the testimony of its president, Robert K. Brown, who stated he did not know or suspect in 1984 that some of the SOF classified ads had been linked to criminal plots. Other SOF staffers and readers echoed these denials. SOF's advertising manager, Joan Steele, testified that she understood the phrase "high risk assignments" in Hearn's ad to mean "gun for hire," but in the sense of a professional bodyguard or security consultant rather than a contract killer.

The district court's first special interrogatory asked the jury whether Hearn's ad "related to" illegal activity. The court's second interrogatory asked, "Did [SOF] ... know or should it have known from the face or the context of the Hearn advertisement that the advertisement could reasonably be interpreted as an offer to engage in illegal activity?"

The court's instructions charged SOF with knowledge that Hearn's ad reasonably could be interpreted as such an offer when (1) the relation to illegal activity appears on the ad's face; or (2) "the advertisement, embroidered by its context, would lead a reasonable publisher of ordinary prudence under the same or similar circumstances to conclude that the advertisement could reasonably be interpreted" as an offer to commit crimes. The court went on to define "context" as the magazine's (1) "nature"; (2) other advertisements; (3) articles; (4) readership; and (5) knowledge, if...