Bob DANIELS, As Administrator of the Estate of Isaac Gaston Daniels, deceased, Plaintiff-Appellant, Cross-Appellee, v. TWIN OAKS NURSING HOME, a Corporation, and Mediplex Incorporated, a Corporation, Defendants-Appellees, Cross-Appellants, 692 F.2d 1321

GODBOLD, Chief Judge: Plaintiff brought suit under 42 U.S.C. § 1983 and asserted a pendent state law negligence claim as administrator of the estate of his father, Isaac Daniels, for Daniels’ wrongful death. Daniels disappeared while under the care of the defendant nursing home and has not been seen since. In a trial conducted before a magistrate with the consent of the parties pursuant to 28 U.S.C. § 636(

c) the jury returned a verdict of $1 million, but the magistrate entered a judgment n.o.v. and granted a new trial in the alternative that the judgment is reversed. We affirm the judgment n.o.v. I. The facts Isaac Daniels was committed to an Alabama state mental hospital in 1970 at the age of 69 because he was senile and could not be stopped from wandering into strangers’ houses. As his only mental problem was senility, Daniels was transferred in 1973 to the Twin Oaks Nursing Home, a private institution in Mobile, Alabama.

After a trial period of two years Daniels was formally turned over to the nursing home on a permanent basis, under contract with the state. Nurses’ notes document that Daniels had a persistent tendency to wander off from the nursing home. During a six-month period in 1974, for example, Daniels succeeded in leaving the home five separate times. He usually was found in the neighborhood, but on one occasion in 1974 he walked into woods that were adjacent to the home and was found on the other side of a swamp located in the midst of the woods.

Facts concerning the size and nature of the woods and swamp were not fully developed. All we know is that the woods were dense and that the swampy area was described as the size of a city block and as 200 yards long and the width of the courtroom. We do not know the nature of the swamp or the size of the wooded area. Other instances of leaving the home, both attempted and successful, continued to occur through 1978. Because of Daniels’ peripatetic tendency the nursing home began to restrain him regularly when he could not be watched.

The means of restraint were tranquilizers and a “Posey vest,” a cloth vest with straps that tie the patient to a bed or chair. On the morning of June 6, 1979, when Daniels was last seen, he was restrained in a Posey vest and was checked at hourly intervals up until 11:00. At approximately 11:45 a.m., however, it was discovered that Daniels was missing. Employees of the nursing home searched the surrounding neighborhood and the woods adjacent to the home but to no avail. Radio and television stations were notified.

The next evening a team of four policemen with search dogs were called in, and they searched the woods and swamp for two to three hours. Neither Daniels nor his body was then found or has ever been found. One year later a state probate court appointed plaintiff to administer Daniels’ estate,

an act that plaintiff contends, and defendant does not challenge, conclusively establishes Daniels’ death. Plaintiff brought suit in federal court under 42 U.S.C. § 1983 charging that the nursing home’s negligence caused Daniels’ death in violation of due process and that the nursing home was a state actor. Plaintiff also brought a pendent state law negligence claim. The case was tried by a U.S. magistrate with the consent of the parties pursuant to 28 U.S.C. § 636(c).

The parties agreed that the state and federal theories of action were identical, and so the case was submitted to the jury under a single negligence instruction. The magistrate denied defendant’s motion for directed verdict, and the jury found for the plaintiff and awarded $1 million in damages.

The magistrate entered a judgment n.o.v., reasoning as to the state law negligence action that Alabama’s rule of evidence against drawing an inference from an inference made the evidence insufficient to submit the case to the jury, and as to the federal claim that there was not the requisite abuse of power necessary to state a constitutional cause of action. In the alternative the magistrate ordered a new trial on the ground of excessive damages. On appeal plaintiff objects to the three post-verdict rulings just summarized.

Defendant contends that the judgment can be sustained on the ground that there was insufficient evidence under the federal standard to support the verdict. We affirm on the basis of the latter ground. II. Sufficiency of the evidence Plaintiff’s case rested entirely upon circumstantial evidence. There is no direct evidence of negligence or of the cause of death.

Plaintiff contends that the jury could be properly allowed to infer negligence from the fact that Daniels could have left the nursing home only by passing a nurses’ station, and that the jury could infer that this negligence proximately caused Daniels’ death because he was infirm and senile. A. Federal or state standard The magistrate ruled that Alabama’s rule against pyramiding inferences, i.e., that one inference cannot be based upon another, see e.g., Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 107, 167 So.2d 274 (1964), was controlling on the federal court under Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and therefore a judgment must be entered for defendant on the state law cause of action. The magistrate erred in this ruling because Alabama’s rule against pyramiding inferences is no more than a rule concerning the sufficiency of the evidence and therefore is a matter of federal law. Boeing Co. v. Shipman, 411 F.2d 365, 368-70 (5th Cir.1969) (en banc), settled that under Erie federal law controls questions of the sufficiency of the evidence in state law claims.

According to federal law there is no prohibition against pyramiding inferences; instead all inferences are permissible so long as they are reasonable. Fenner v. General Motors Corp., 657 F.2d 647, 650-51 (5th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Cora Pub, Inc. v. Continental Casualty Co., 619 F.2d 482, 486 (5th Cir.1980).

Defendant contends that Alabama’s rule against drawing one inference from another inference is analogous to the doctrine of res ipsa loquitur in that it determines when a case can be proved by circumstantial evidence, and that because res ipsa is a matter of state law, Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-40 (5th Cir.1980), so should be the rule against pyramiding inferences.

State doctrines of res ipsa loquitur are respected in federal court because the doctrine has assumed the status of a substantive rule of law, affecting plaintiff’s burden of proof or production of evidence, The Doctrine of Res Ipsa Loquitur in Alabama, 26 Ala.L.Rev. 433, 444-58 (1974). There is no authority or rationale to support the contention that the rule against pyramiding inferences has assumed this same substantive law status or that it is any more than a rule concerning sufficiency of the evidence. Even if there were some doubt, the issue is settled by Equitable Life Assurance Society v.

Fry, 386 F.2d 239 (5th Cir.1967). There the appellants contended that a jury verdict could not be upheld because, inter alia, it necessarily involved “pyramiding of inferences.” Id. at 241. The court held that “the test to be applied in diversity cases to determine the sufficiency of the evidence for submission of a case to a jury is a matter of federal law,” id. at 245, and held that the inferences drawn by the jury were reasonable under federal standards, id. at 245-48. B.

The federal standard of allowable inferences Defendant contends that the judgment can be sustained even if a federal standard is applied, because the inferences necessarily drawn by the jury were not reasonable or allowable ones. Defendant cites cases such as Smith v. General Motors Corp., 227 F.2d 210 (5th Cir.1955), and McNamara v. American Motors Corp., 247 F.2d 445 (5th Cir.1957), for the proposition that if the inference “is only a guess or a possibility, or is no more probable than one of several others,” then a verdict must be directed for defendant Smith, supra, 227 F.2d at 213.

There are two distinct thoughts in this statement. The first is that an inference is not reasonable if it is “only a guess or a possibility,” for such an inference is not based on the evidence but is pure conjecture and speculation. This proposition is undoubtedly sound. See, e.g., Green v. Reynolds Metals Co., 328 F.2d 372 (5th Cir.1964).

The second proposition is that, even though an inference supporting the verdict is a reasonable one, it cannot stand if there are other equally probable inferences; that is, where a case is proved by circumstantial evidence the court must find that the preponderance of evidence supports the plaintiff, and if there are two or more equally probable inferences only one of which supports the plaintiff a verdict must be directed for the defendant. This rule of equally probable inferences is no longer sound. In Planters Manufacturing Co. v.

Protection Mutual Insurance Co., 380 F.2d 869 (5th Cir.), cert. denied, 389 U.S. 930, 88 S.Ct. 293, 19 L.Ed.2d 282 (1967), the rule of equally probable inferences was rejected. The court explained that the rule was based on the Supreme Court’s precedent in Pennsylvania R.R. v. Chamberlin, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819 (1932), which had been superseded by Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946). Id. 380 F.2d at 872-74.

The court held that it is immaterial that evidence may equally support an inconsistent inference, if in fact fairminded men might draw from the evidence the inference sought by the [opponent to a directed verdict].... The question, then, is whether [the] evidence ... constitutes a basis from which the jury might with reason have inferred [for the plaintiff], and it is no answer to that question to say that a conflicting inference might with equal probability have been drawn therefrom. Id. at 878. Accord, Continental Ore Co. v.

Union Carbide Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962) (we are bound “to give the [plaintiff] the benefit of all inferences which the evidence fairly supports even though contrary inferences might reasonably be drawn”). See generally, 9 Wright & Miller, Federal Practice and Procedure, § 2528 at 563-68 (1971). Smith v. General Motors, supra, and similar cases were decided at a time when state law controlled the sufficiency of the evidence in diversity cases.

Under the modern case law applying a federal standard, a verdict based on circumstantial evidence is not infirm simply because the evidence supports an equally probable inference to the contrary. It is the jury that chooses among allowable inferences. The standard for determining whether an inference is allowable is generally whether it is a reasonable one, that is, whether it is one that “reasonable and fair-minded men in the exercise of impartial judgment” might draw from the evidence. Boeing Company v. Shipman, supra, 411 F.2d at 375.

An inference is not unreasonable simply because it is based in part on conjecture, for an inference by definition is at least partially conjectural. Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 851 (5th Cir. 1967), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968). Yet a jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Id. Such an inference is infirm because it is not based on the evidence.

Unavoidably, “[i]n deciding how much the jury can speculate ... [t]he line of demarcation which we are required to walk is ephemeral.” Id. C. The inferences in this case Applying these principles to the facts of this case, we hold that the verdict cannot stand because a finding that negligence of the nursing home proximately caused Daniels’ death is a product of too great a degree of speculation and conjecture based on the evidence in this record. First, with respect to negligence, there was sufficient evidence from which a jury could infer that Daniels exited the home through negligence of the defendant.

An exit door was kept unlocked, and a nurses’ station that had to be passed in order to exit was required to be attended. No trace of Daniels was found in the home. Thus, the evidence supports inferences that he exited through this door and did so because of the home’s negligence in either failing to keep the station attended or failing to monitor the exit properly. As to the fact of death, the evidence permitted the jury to find that Daniels is no longer living. Here the direct evidence ends. It is unknown whether Daniels exited alone or accompanied by or taken by someone else.

We assume, however, that based upon the prior history of escapes and wandering the jury could infer that Daniels exited on his own and wandered away from the home. There is no direct evidence of where he went or of the cause of death; these facts must be inferentially determined. Plaintiff concedes that the bare fact of disappearance, plus presumed death, is insufficient to support an inference of proximate cause of death.

But plaintiff points to circumstantial evidence that he contends is sufficient to support two theories of death either of which might have been accepted by the jury and both of which are within the foreseeable risks of wandering from the home. First, plaintiff observes that Daniels was taking heart medication as near as six weeks prior to his disappearance and suggests that a jury could infer that Daniels died as the result of failure to take his medication. But there is no evidence in the record concerning the purpose of the medication indicating that it was vital or life-sustaining.

The jury was not even told what Daniels’ heart ailment was beyond a statement that the medicine he was taking was usually given for “some coronary insufficiency or an angina-like syndrome.” A reasonable and fair-minded juror could not draw from this evidence a conclusion that Daniels died from his heart condition as a consequence of not receiving medication for that condition. Plaintiff’s second theory is that the jury could infer that Daniels wandered into the woods adjacent to the nursing home and perished from exposure or accident. In the midst of the woods is the swamp.

Possibly the jury might infer that Daniels in his infirm and senile condition died from exposure or accident in the woods if there were sufficient evidence that he went into the woods, but the evidence is insufficient to support this preliminary finding. The evidence that Daniels might have wandered into the woods consists of this: during a prior escape he had entered the woods; the woods are adjacent to the home; and his body was never discovered elsewhere. We examine this circumstantial evidence to determine whether it is strong enough to support a rational inference that Daniels wandered into the woods.

Daniels’ prior excursion into the woods gives insubstantial support to this inference. Of the seven or eight instances where Daniels left the home in the past, he only once went into the woods. In all other instances Daniels went into the surrounding residential neighborhood; he exhibited a particular preference for a nearby cemetery. More important, however, is that the only prior incident of going into the woods was remote in time, occurring five years prior to Daniels’ final disappearance.

This does not establish a habit or propensity or substantial likelihood of his wandering into the woods on the date of his disappearance. The proximity of the woods and the fact that Daniels was never discovered, while consistent with the theory that Daniels wandered into the woods, suggest only that disappearance in the woods was one possibility. Daniels might have disappeared in any one of a number of ways.

To mention only a few, a passing motorist might have given him a ride out of town, he might have been the victim of violent crime, or he might have gone into an abandoned building and died from natural causes unrelated to his wandering. Because there is no evidence concerning the character of the surrounding neighborhood tending to negate these other possibilities, the mere possibility that he wandered into the woods is too speculative to be the basis for a jury verdict.

Furthermore, the bare possibility suggested by the proximity of the woods and Daniels’ disappearance is “at war with uncontradicted ... facts.” Fenner v. General Motors, supra, 657 F.2d at 650-51. There was no ready access into the woods. A fence surrounding three sides of the nursing home separated the home from the woods. In addition, there was uncontradicted testimony from an employee who searched the woods that after going in 10 to 15 feet the thickness of the woods made it hard to proceed without breaking limbs.

As the district court acknowledged, the woods were “nearly impenetrable.” In his earlier venture into the woods Daniels made it through to the far side of the swamp, but the jury did not know whether five years earlier the woods were as • penetrable or impenetrable as when Daniels disappeared. The wooded area was searched with no success by a team of four policemen with trained dogs for a period of two to three hours, and the assistant administrator of the home searched it on several occasions.

Plaintiff asserts that there was never a thorough search of the woods, but there is no evidence indicating that these efforts were insufficient. In' conclusion, a careful analysis shows Daniels' prior excursion into the woods to be the only evidence that tends to give real substance to the possibility of disappearance in the woods. In the circumstances of this case, however, where this event occurred five years earlier as only one incident in a number of wanderings, this evidence is so slight and remote as to amount to at most a scintilla of evidence.

Without any greater indication of how Daniels disappeared and of what caused his death an inference of proximate cause remains too speculative to be one supported by “substantial evidence.” Boeing, supra, 411 F.2d at 374. We do not reach our conclusion on the strength of inferences contrary to the verdict. This is hot a case where the evidence supports conflicting inferences.

Instead, this is a case where there is no evidence beyond a mere scintilla that tells us what happened to Daniels; it is this lack of evidence that keeps the case from the jury and requires a directed verdict against the party with the burden of proof. We do not require that the cause of death be identified with scientific precision. See Alman Brothers Farms & Feed Mill, Inc. v. Diamond Laboratories, Inc., 437 F.2d 1295, 1301 (5th Cir.1971).

However, the evidence must support an explanation of the cause of death that is sufficiently articulated that the jury is not permitted to engage in an unallowable degree of speculation. Plaintiff’s explanations are not supported by the evidence. Cases cited by plaintiff do not contradict our holding. In other cases where a nursing home or similar institution was held liable for a patient who wandered away and died, the body was found and the cause of death was ascertainable; therefore the only litigated issue was the negligence of the home, not proximate cause. See Krestview Nursing Home, Inc. v.

Synowiec, 317 So.2d 94 (Fla.App.1975), cert. denied, 333 So.2d 463 (1976); Milton v. State, 293 So.2d 645 (La.Ct.App.1974). See generally, Liability of Hospital or Sanitarium for Injury or Death of Patient as a Result of His Escape or Attempted Escape, 70 A.L.R.2d 347 (1960); Patient Tort Liability of Rest, Convalescent or Nursing Homes, 83 A.L.R.3d 871, at § 7, “Wandering Away” (1978). Plaintiff erroneously attempts to rely on the doctrine of res ipsa loquitur. This doctrine may be used only to prove negligence, not proximate cause. Georgia Power Co. v.

Edmonds, 233 Ala. 273, 275, 171 So. 256, 258 (1936); Alabama Power Co. v. Bryant, 226 Ala. 251, 254, 146 So. 602, 605 (1933). Judge Hoffman agrees with this opinion with respect to the granting of judgment n.o.v., that is, the merits of the state law claim. He has, however, filed a special concurring opinion, expressing his view that the claim brought under 42 U.S.C. § 1983 does not present a substantial federal claim and should have been dismissed. With no substantial federal claim stated, in his view, the court lacked jurisdiction to hear the state wrongful death claim.

Chief Judge Godbold is of the view that the § 1983 claim was not subject to dismissal since prior decisions did not “inescapably render the claim[s] frivolous.” Curtis v. Taylor, 625 F.2d 645, 649-50 (5th Cir.1980); Jackson v. Stinchcomb, 635 F.2d 462, 471 (5th Cir.1981). Judge Anderson concurs in this view but dissents on the merits of the state law claim and has filed a dissenting opinion on that issue. The judgment is AFFIRMED. . Neither the State of Alabama nor any agency was sued but only the private nursing home.

Mediplex Corp., the second named defendant, is the parent corporation of Twin Oaks Nursing Home. The jury found against only the nursing home. No issues concerning the parent corporation are raised on appeal, and therefore we refer to only the defendant nursing home. . We are bound by this case and others of the former Fifth Circuit cited in this opinion and handed down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). .

The court in Smith also said that “a case can go to the jury only if ‘the circumstantial evidence amounts to a preponderance of all reasonable inferences that can be drawn from the circumstances in the evidence to the end that the evidence is not reasonably susceptible of two equally reasonable inferences.’ ” Id. at 216. . In Chamberlin the Court stated that in “a case ... where proven facts give equal support to each of two inconsistent inferences ... judgment, as a matter of law, must go against the party [with the burden of proof].” 288 U.S. at 339, 53 S.Ct. at 393.

In Lavender the Court said that where there is “a reasonable basis in the record for inferring [for the plaintiff] ... [i]t is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fairminded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference.” 327 U.S. at 652, 66 S.Ct. at 743. See also, Tennant v. Peoria & Pekin Union R.

Co., 321 U.S. 29, 34-35, 64 S.Ct. 409, 412-413, 88 L.Ed. 520 (1944). . This unequivocal rejection of the equally probable inference rule survives despite the subsequent en banc decision in Boeing Co. v. Shipman, supra. In Boeing the former Fifth Circuit undertook to establish the federal standard for sufficiency of the evidence in civil cases. The court stated that the Planters court had incorrectly relied on Lavender because Lavender was an FELA case where the standard for submission to the jury was statutorily weaker than the standard in ordinary civil cases.

The court therefore “reject[ed] the Planters principle.” 411 F.2d at 370-73. Boeing’s rejection of the “Planters principle” did not affect the aspect of Planters that disapproved the equally probable inferences rule. This latter aspect of Planters survives. First, Boeing did not address this aspect of Planters or this aspect of the Supreme Court FELA cases on which Planters relied. The aspect of Lavender and other FELA cases that the court took issue with in Boeing was that any evidence of negligence, even the slightest, would send the case to the jury. Id. at 370-71.

Nowhere in Boeing is there an indication that the equally probable inferences rule was at issue or was considered. Therefore, in Boeing the court addressed only what quantum of evidence would make an inference reasonable, not whether the jury is allowed to choose between two equally probable, yet reasonable, inferences. Second, the equally probable inferences rule of old cases such as Smith v. General Motors, supra, is inconsistent with the standard of sufficiency adopted in Boeing.

In Boeing the court held that a verdict should be directed only if “the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.” Id. at 374 (emphasis added). This does not allow a rule where a verdict is directed simply because a contrary inference is equally likely. The contrary inference must be “so strong and overwhelming” that the inference in favor of plaintiff is unreasonable.

Moreover, in Boeing the court expressly stated that “it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences.” Id. at 375 (emphasis added). Third, the former Fifth Circuit has frequently rejected the equally probable inferences rule in cases following Boeing. See Alman Brothers Farms & Feed Mill, Inc. v. Diamond Laboratories, Inc., 437 F.2d 1295, 1301 (5th Cir.1971); Tucker v.

Bethlehem Steel Corp., 445 F.2d 390, 392 (5th Cir.1971) (“Given an apparent evidentiary basis for the verdict ... the appellate court’s function is exhausted, ‘it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.’ ”); Callón Petroleum Co. v. Big Chief Drilling Co., 548 F.2d 1174, 1180 (5th Cir.1977) (“It should be left to the ... jury ... to resolve such conflicting inferences.”); Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir.1978) (“ ‘the choice between permissible inferences is for the trier of facts’ ”); Southway Theatres v.

Georgia Theatre Co., 672 F.2d 485, 495 (5th Cir.1982) (Unit B) (“ ‘Where more than one reasonable inference can reasonably be drawn from the proof, it is for the jury to determine the proper one.’ ”). But see Prudential Insurance Co. v. Schroeder, 414 F.2d 1316, 1319 (5th Cir.1969). . The magistrate ruled that the probate judge’s opening of Daniels’ estate for administration was an adjudication of the fact of death not subject to collateral attack. We do not decide the validity of this ruling, for no objection was made in the district court nor has the issue been raised on appeal. .

The evidence concerning the heart medication consisted solely of the following testimony by a psychiatrist who examined Daniels’ records: Q: Now, do your records reflect as of ... some six or seven weeks before he disappeared whether or not Mr. Daniels was taking any medication ... ? A: According to this note, he was taking Peritrate Q: What is Peritrate, please sir? A: Its primary purpose is a coronary vasodilator; it’s to dilate the blood vessels in the heart; it’s usually given for some coronary insufficiency or an angina-like syndrome. .

Later that same day he escaped again and was seen heading in the direction of the woods. . The assistant administrator testified that he was “pretty confident that [Daniels] had not been in there” because there was no evidence of trampled brush tending to show prior passage, whereas he could see where he had passed during his search because he left trampled brush.