A. Clifford Edwards, Berger, Anderson, Sinclair & Murphy, P. C., Billings, Mont., on brief, for plaintiff-appellant.

Terry Spear, Crowley, Haughey, Hanson, Toole & Dietrick, Billings, Mont., James L. Jones, Anderson, Brown, Gerbase, Cebull & Jones, P. C., Billings, Mont., on brief, for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT and CANBY, Circuit Judges, and PATEL,* District Judge.

PATEL, District Judge:

Betty Sankovich, the beneficiary of two life insurance policies, appeals from the district court's grant of summary judgment holding two companies not liable on the policies. Although the parties do not dispute the underlying historical facts, we conclude that the ultimate fact whether the insured committed suicide presents a triable question for the jury. We reverse and remand.

* Kenneth Sankovich, Betty Sankovich's husband, was insured under two life insurance policies issued by the appellees. Kenneth died from a bullet wound to the head. He was found on the floor of his bedroom, a pistol lying about six inches from his body. Betty had purchased the gun six months before Kenneth's death. Betty had seen Kenneth clean and load the gun once before his death.

On the night of Kenneth's death, he came home from work at 5:15 p. m., his usual time. He began to drink and watch television. Betty sat and drank with Kenneth in the kitchen. At about 8:00 p. m. Kenneth and Betty began an argument, the substance of which Betty cannot recall. After 45 minutes of arguing, Kenneth got up and told Betty to get dinner. Kenneth left the kitchen. Betty heard a noise in the bedroom and found Kenneth lying on the bedroom floor.

Betty stated that, except for the shooting, the events that night were not unusual. Throughout their 12-year marriage, Kenneth often drank and argued with Betty. The drinking and arguing often ended with Kenneth beating Betty. During the last three years of the marriage, the drinking and arguing had steadily increased.

Betty called the police to report the shooting. Officer Bodine answered the call. Bodine met Betty in her front yard and Betty stated, "My husband shot himself." Throughout Bodine's investigation Betty repeatedly asked, "Why did he do it?" From his investigation, Bodine made the following determinations: the gun had been fired four to six inches from Kenneth's head; the bullet entered near the right temple and exited above and in front of the left ear; Kenneth had .24 blood alcohol level at the time of death; and the cause of death was a self-inflicted gunshot wound.

At the time of his death, Kenneth had been employed for 81/2 years as a purchasing agent. There are no indications of job or financial problems. Moreover, there are no indications of particular family or personal problems other than those mentioned above. Kenneth had not attempted, mentioned, or threatened suicide before his death.

Betty sued the Life Insurance Company of North America and Credit Life Insurance Company to collect benefits on the life insurance policies that covered Kenneth. The insurers denied liability, contending that Kenneth had committed suicide. It is agreed that the policies exclude liability for suicide. The district court held that suicide was established as a matter of law, and granted the defendants' motions for summary judgment.

II

Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing a grant of summary judgment, we draw all inferences of fact in favor of the party opposing the motion. Bieghler v. Kleppe, 633 F.2d 531 (1980).

There is no dispute to the basic facts. The dispute is whether those facts establish suicide as a matter of law. The determination here whether death is by accident or suicide is governed by Montana law.1 See Equitable Life Assurance Society v. Irelan, 123 F.2d 462, 464 (9th Cir. 1941). When the question is whether death is due to accident or suicide, Montana provides a rebuttable presumption that death is by accident. Lewis v. New York Life Insurance Co., 113 Mont. 151, 158, 124 P.2d 579, 582 (1942). This presumption has the weight of evidence. Nevertheless, the presumption can be overcome as a matter of law, creating a legal question for the court. Id. at 168, 124 P.2d at 584. The question becomes one of law for the court when the evidence points overwhelmingly to suicide as the cause of death. Nichols v. New York Life Insurance Co., 88 Mont. 132, 141, 292 P. 253, 255 (1930).

Two cases have held that sufficient evidence existed to overcome the presumption as a matter of law. In Nichols v. New York Life Insurance Co., 88 Mont. 132, 292 P. 253 (1930), the insured died of strychnine poisoning. The insured told a neighbor that she had taken three capsules and wished she had taken more. She told a neighbor that she had fought with her husband and was mad at him. She also said, "I am through with the world, all through. I am going to take poison and end it all." Finally, just before dying the insured stated, "Please, mother, forgive me, and God forgive me."

Equitable Life Assurance Society v. Irelan, 123 F.2d 463 (9th Cir. 1941), also held the evidence there sufficient to overcome the presumption of accidental death. The insured drowned in Puget Sound. A week before her death she had attempted suicide and had left a suicide note. After that attempt the insured told her husband, "I want to die, let me alone." Her footprints traced a path along the banks and into the water. There was no evidence of injury or foul play. The only evidence to negate the inference of suicide was the testimony of one expert that, absent evidence of considerable tidal currents, it would be impossible intentionally to drown oneself in that location.

Both Nichols and Irelan are distinguishable from the present case. In Nichols and Irelan the insured expressed an intent to commit suicide, and in Irelan the insured had recently attempted suicide. In the present case, however, there is no such evidence of suicidal intent.

In contrast to Nichols and Irelan are two cases that held that the determination whether death was accidental or suicide was a fact question for the jury. In Lewis v. New York Life Insurance Co., 113 Mont. 151, 124 P.2d 579 (1942), the insured died of a gunshot wound. On the morning of his death, the insured acted unusually. He woke earlier and ate a different breakfast than usual. The insured's landlady claimed that the insured had not been himself lately and had told her that he questioned his love for his fiancee. The insured was also concerned about his father's ill health. The evidence established, however, that the insured was a young man who had no financial problems and had a promising future in his career. The bullet causing death entered at the insured's forehead. The gun was found on a table, several inches from his hand. A gun cleaning brush and jar of cleaning oil were also on the table. The bullet that caused the death had been the only one in the gun.

The second case in which the issue of suicide was held to present a question for the jury is Gamer v. New York Life Insurance Co., 76 F.2d 543 (9th Cir. 1935), after remand, 90 F.2d 817 (9th Cir. 1937), reversed, 303 U.S. 161, 58 S. Ct. 500, 82 L. Ed. 726 (1938), on remand, 106 F.2d 375 (9th Cir.), cert. denied, 308 U.S. 621, 60 S. Ct. 294, 84 L. Ed. 518 (1939). The insured in Gamer died of a gunshot wound to the mouth. Before his death, the insured voiced an intent to go fishing that day, and was dressed for hunting, as was his custom. About one-half hour later, he was found lying in the bedroom, with his legs extended into the closet where his gun was kept. Clothing and other items in the closet made it difficult to maneuver in the closet. Thus, the court held that it could be inferred that the insured accidentally shot himself while trying to remove the gun from the closet.

Lewis and Gamer are also both distinguishable from the present case. In both cases there was a benign explanation for the insured's handling of the gun. In Lewis the insured could have been cleaning his gun; in Gamer the insured could have been preparing for a hunting trip. In the present case there is no such benign explanation for the insured's handling of the gun.

Although Nichols, Irelan, Lewis, and Gamer deal with the question raised here what quantum of evidence makes the issue of suicide a question of law for the judge the facts of this case place it squarely between the two lines of precedent. Kenneth Sankovich did not make statements or take prior actions indicating his intent to commit suicide as in Nichols and Irelan; but there is also no benign explanation for handling the gun as in Lewis and Gamer.2

III

We conclude that the proper approach here is to allow the jury as factfinder to decide whether Kenneth Sankovich intentionally killed himself. Where, as here, intent is an issue, we are very wary of allowing summary judgment. E. g., Hotel & Restaurant Employees v. Rollison, 615 F.2d 788, 793 (9th Cir. 1980).

Although the factfinder would certainly be entitled to infer that the facts as presented in the motions and accompanying documents establish intentional self-destruction, we cannot say on the record before us that the factfinder could not reasonably have reached the opposite conclusion.3 Where there are undisputed facts from which different ultimate inferences might reasonably be drawn and as to which reasonable persons might differ, the case is not suitable for summary judgment. See, e. g., United States v. Diebold, 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962) (per curiam); United States v. Perry, 431 F.2d 1020, 1022 (9th Cir. 1970).

Kenneth Sankovich's self-inflicted death arguably was inconsistent with his prior behavior. The jury as factfinder is the proper body to determine whether that self-inflicted death was intentional or accidental. Accordingly, we reverse the summary judgment and remand the case to the district court for further proceedings.

REVERSED and REMANDED.