#### BILL R. PRICE v. STATE CAPITAL LIFE INSURANCE COMPANY.

(Filed 17 January 1964.)

1.. Insurance § 28—

Provision of a policy for benefits if a person covered is confined to a hos-spital by reason of sickness' refers .to am existing illness which is the cause *153of the hcspitalizaiaon, 'and does not coyer an operation ito prevent future ■illness.

2. Same—

The evidence disclosed tha,t plaintiff’s wife had arrested tuberculosis, ■that she became increasingly nervous and depressed during each successive pregnancy, and that after the delivery of her fourth ehild her physician was of the opinion she was headed for a post-partum psychosis unless a tubal ligaitton was performed. *Held:*If the operation was to prevent future illness it was not within the coverage of the hospital policy, but if the post-partum depression was serious enough to ¡be classified as a sickness, the operation was within the coverage, and the issue should be submitted to the jury.

3. Same—

■Serious emotional depression, even though not amounting to insanity, is ,akin to it, land insanity is generally held to be a sickness within the meaning of ia health and accident policy.

4. Trial § 22—

Discrepancies in the evidence are for the jury and not the court

Appeal by plaintiff .from Sink, *E. J.,*at the July 1963 Civil Term of DAVIDSON.

Plaintiff instituted this action upon a policy of (hospital insurance to recover $372.75, surgical and hospital expenses incurred when an operation known as la tuibal ligation was performed upon his wife. Defendant admitted that the policy in suit was .in full force and effect between the parties at the time of the operation; that plaintiff’s wife is an “eligible dependent” covered by the policy; and that proof of loss was duly filed. Defendant alleged, however, that hospitalization and surgery for an “elective tuba'l ligation” was not compensable under the term® of the policy.

By stipulation the parties ¡designated the .pertinent portions of the insurance contract. In summary, they provide for surgical and hospital benefits wthen the ¡surgery is performed by a legally qualified physician upon 'am insured “as a result of accidental ¡bodily injuries' or .sickness.”

Plaintiff’s evidence, viewed in the light .most favorable to him, tended to show the .following facts: He and hiis wife have four children between the ages of two and thirteen years. Mrs. Price became increasingly depressed ¡and! disturbed emotionally 'during each pregnancy after (her first. During her fourth, she was emotionally unstable throughout the entire pregnancy. She wept continuously, required drugs in order to sleep or eat, and remained in bed for most of the nine months. She narrowly escaped a complete nervous breakdown. Mrs. Price had *154twice been- in- a sanatorium for tuberculosis, the feet time being four or five months after the birth of her first child.

Dr. E. L. Jones, Mins. Price’s physician, testified in substance as follows: -Mrs. Price wanted -the operation performed immediately following the delivery of her fourth child. Ordinarily ligations are done ¡within three days following -delivery; however, to be sure ¡that such ¡an operation was necessary, Dr. Jones postponed it for four weeks. She improved/ but did not recover completely. He -came to the conclusion ¡that she was headed for a post-partum psychosis unless the operation was performed. He had treated her .for some emotional depression between her third ¡and fourth pregnancies:, although it wais 1-ess severe than that which developed after .she became pregnant. In summary, he advised the operation because (1) Mrs. Price ¡continued extremely nervous ¡and he ¡diagnosed her condition -as “severe emotional depression”; (2) .there was a danger that ¡another pregnancy would activate her .arrested tuberculosis; (3) isihe had four young children who needed her and (4) she had become increasingly nervous following each pregnancy and delivery, and ¡another pregnancy would cause medical debility.

The ¡operation was successfully performed ¡on May 14, 1961 — five or six weeks ¡after the delivery -of Mrs. Price’s fourth ¡child. Since then, she has suffered no emotional disturbance and is now in good health so far iais this sympton is concerned. In the opinion of Dr. Jones she would not have recovered -completely without the operation.

At ¡the conclusion of plaintiff’s evidence, the trial judge allowed defendant’s motion for nonsuit and the plaintiff appealed.

*Charles F. Lambeth, Jr., for plaintiff appellant.*

*Allen, Steed ■& Pullen and William B. Mills by Thomas W. Steed, Jr., for defendant appellee.*

Sharp, J.

Whether plaintiff offered any evidence tending to show that -the operation performed upon Mrs. Price was the result ¡of an existing sickness is the question ¡posed by this appeal.

Webster’s New International Dictionary, -Second Edition, Unabridged', defines sickness: “1. a Diseased condition; illness; ill health, b A disordered or weakened condition in general. ‘A great *sickness*in hiis judgment.’ ¡Sthak. 2. a A malady; a form of disease . . . .” This definition wais approved in *Reserve Life Insurance Company v. Lyle,*Okl. 288 P. 2d 717. This Court has several times quoted, with approval, the following ¡definitions of disease:

> “. . . . ‘an alteration in the state of the human body ... or of some of its organs or parts interrupting or 'disturbing -the per*155■formance of the vital functions, or of a particular instance or ease of'.this’; as 'deviation from the healthy or normal condition of any of the fuoctionis or tissue® of the body’; and as a ‘morbid condition of the body’.” *Bailey v. Insurance Co.,*222 N.C. 716, 24 S.E. 2d 614; *McGregor v. Assurance Corporation,*214 N.C. 201, 198 S.E. 641.

While the words “sickness” and “disease” .are technically synonymous, “.when given the popular meaning as required in .construing a contract of insurance, ‘sickness’ is a condition interfering with one’s usual activities, whereas disease may exist without such result; in other words, one is not ordinarily considered sick who performs his usual occupation, though some organ of the body -may be affected, but is regarded as sick when such diseased condition has advanced far enough to incapacitate him.” 29 A. Am. Jur., *Insurance*§ 1154; 10 Cb-uch on Insurance 2d § 41:801.

Closely analogous to the instant case is that of *Reserve Life Insurance Company v. Whitten,*38 Ala. App. 455, 88 So. 2d 573. There suit was brought upon ;an insurance policy which provided for benefits for hospital 'confinement “resulting from sickness.” A tubal ligation was performed on the plaintiff because she had hemorrhaged very seriously during past pregnancies and another would .endanger her life. When asked if am existing illness necessitated the operation, plaintiff’s physician testified that the operation w.ais performed to- prevent a potential illness; that if plaintiff did not again -become pregnant she would have no further trouble. In denying recovery, the Alabama Court said, “. . . . (W)e are of the opinion his (the doctor’s) testimony shows conclusively that the operation for which plaintiff is seeking to. recover was not performed to relieve any existing 'condition, but was performed solely -for the purpose of preventing .a possible future pregnancy and a possible severe -hemorrhaging resulting therefrom.”

We think it clear that the policy .involved herein does not cover an operation to prevent a potential sickness but was intended to- include only hospitalization resulting from an actual existing illness. Therefore, if the operation upon plaintiff’s wife was performed solely to prevent a future pregnancy, either because it might activate the arrested tuberculosis or cause -another emotional disturbance, it clearly wais not within the policy coverage. However, if one of the purposes proxi-tmately contributing to the decision to perform the operation was to eliminate a post-partum depression serious enough to- be classified as a sickness, -the operation was covered. The expression “confined to a . . . hospital by reason of . . . sickness,” contained in the policy in *156suit, -camotas -an active state iof ilkuesis or -a 'condition which itself is toe cause of hospital ic-onfinemenit. *Reserve Life Insurance Company v. Lyle, supra.*

Certainly 'daring the nine months of hear fourth -pregnancy, Mrs. Price 'had aoi illness oonniected with., but in addition ito, her pregnancy. The -evidence of Dr. Jones -tended to. show that following the birth of the child: she improved but did not compleitely recover. He observed her for one -month and came to the 'conclusion that she was headed for a post-piartum psychosis if the tubail ligation was not performed.

A morbid condition of -the mind, a deviation from its healthy and normal state, can be a disease or illness as well as 1a morbid condition of the body. Severe 'emotional depression, while not necessarily amounting to insanity, is akin -to it. It is generally held that insanity is -a sickness within the meaning of a health and accident policy. See 29A Am. Jur., *Insurance*§ 1154 and 10 Couch on Insurance 2d § 41:802 where the cases are collected.

While there is evidence that a few weeks -after toé birth of her -child Mrs. Price had made a normal, recovery and was 'in good health again, diiscrqoiancies in the evidence -are for toe juay .and not the court. *High v. R.R.,*248 N.C. 414, 103 S.E. 2d 498. The evidence of to-e attending physician was sufficient to -take the case to toe jury.

The judgment of nonsuit is

Reversed.