OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN

Mr. D. W. Stakes, Cashier Texas Prison System Huntsville,Texss

DearMr. Stakes:

We acknowled



### lier has remed t0 pas8 amount of the premium to ardor that this office hoald not be approvedby a specifioappropriation f this olalm Is one thatmay 6gd'Er psylaent

out of the currentappro-

\off$d/e

on February 14, 1939, in OpinionNo. O-201, held that thB State Board of Bealth was unauthorized to insure State property in its possessionagainst loss by fire unlessa specifioa$propriationhad been made for that purpose. That opinionwas bottomed upon the propositionthat the Le&slature had in SenateConaarrent Resolution No. ?I, passedat the Second Called SassIon of the 37th Legislaturei declared it to "be the fixed,palley ot this State to oarry its omn Insuranceupon State buildings and aeptsmts, and that no):I-. D.W. Stakes, Page #2.

insurancepoliciesehallbe taken out upon ony of the publicbuildingsand oontents thereof

...* OplnionRo. O-842,dated May 25, 1939, holds that theCommissionerof Agrioulture has. no authority, in the absenceof a speoifioappropriation for suoh purpose, to ,pay the Premium on a fire or casualty insuranoepolioy Issued

### on certain livestook owned by the State.

An available apeoifioappropriation to pay the premium on any kind of a polloy Issued in favor of the State wouldamonnt to a subeoquentdeolaratlon of polioyby the Legislatureand would, to that extent, repeal the polloy announcedby the Resolutionabove referred to.

In the instant ease, there is a speolfloappropriationmade to the Teraa Prison Syatsm for the purpose of paying “liability lnsuranoepremlums.W It, therefore, neoessarilyfollows that if thepolloy on which the premium Is sought to be paid from saidappropriation is solelya oolioyof that ohtwaoter,your queatlon may be answered in the affirmative.

For the purpose of this opinion, the matarlal provisionsof the polioyaret .-

The Rartford Steam Boiler Inspeotlon and Insuranoe compao~ of Hartford, cozmeotiout

... *In oonsidemtlon or $2.172.30 premium doe6 hereby agreewith Texas Prison Board and/or Texaa Prison System and/or Its Eleoted or Appointed Ofrloem, whoae l

a6reaa la Fiuntrville, Texas, Cmpeoting loss 

### (3koiuaing 10~1 of the kind dsroribsa in Seotion II, and Inoludlng lees of the kind deaorlbea in Seotlon Iv) from an aooldent as herein deflnad to an objeot desorlbed herein, occurring during the polioy period which la from May 23, 1939 to Ray 23, 1942, at 12 o’olook noon, standard time,
as to eaoh of said dates, at the plaoewhere such accident oooura, aubjeot to a Limit perAooident of Fifty Thousand Dollars ($50,000.00),ae follows:

“SECTION I To PAY the Assured for loss on the,

Mr. D. %'. Stakes, Fage lf3.

Property of the Ar:?ured dlrcctlydamaged by such accident (or, if the Company so elects, to repair or replace suoh dar-la,.ed property),excluding (a) lots from fire (or fron the use of water or othermsaos to extinguish fire), (b) loss from an sccldent oaused by fire, (0) loaa from delay or Interruption of business or .mnufacturing or process, (d) loss from laok of power, light,heat, steam or refrigeration, and (e) loss from any Indirect result of an aooldenti

... "SECTIONm TO PAY, ,tothe extent of any Indemnityremalnlnghfter payment of all loss as may be requiredunder Seotlonrr I and II, suohamowits
ss the Assured shallbecome obligated to payby reason of the llabllity of the Assured for loss on the property of others dlreatly damagedby suoh aocldent, Including llablllty for loss of use of suohdamaged property of others; to DEFEND the Aasurea agalnat any olaim or suit alleging suoh damage unless or until the Company shalleleot to effect settlement thereofi

"SECTION IV To PAY, to the axtent of any Indemnityremaining after payment of all loss as may be required under Seotlons I, II and III, If loss under Section IV la stated l bova as lnoluaad but not otherwise, suah amounts as the Assured shall beoome obligated to payby reason of the lIablllty of the* Assured, Inoludlng llablllty ror loss of servloes, on aooount of bodily Injuries (lnoludlngdeath at any tima reaultlng therefrom) sustained by any person and caused by euoh aooldent, except that ths lndemnlty heraunder shall inno event apply to any liability or obligation under any workmen's oompensatlon law; to PAY, if loss under Section 17 la stated above am Includedbut not otherrime, lrreapeotlve of the &imft per Aooident, for l uoh immediate aurglcal relief as shall be rendered at the time Of the aocldent; to DEFEND the Assured, lr loss under %&Ion TV ie eteted above as included.r ..,,I-. D. I?. Stakes, w!w #4.

but not otherwise,against any olalm or suit alleging auoh liebllltyunless or until the Company shall eleot to effeot settlementthereof; and

“SECTIONV To PAY, lrreapeotive of the Limit per

Aooldent,all oosts taxed against the Assured in any legal prooaedlngdefended by the Company in aooordanoewith Seotlon 111 or IV, all interest aoorulag after entry OS judgment rendered in oonueotfcn therewith up to the date of paymant by the Company of its share of such judgment, all preaulum

oharges on lttaohment or appeal bonds’

required In auoh legal prooaedIngs, an4 all expenaea Inourred by the Company for auah defenae~ ...((
SoheduleaNos. 1 and $2, attaohed to the polioy and made a part thereof,deaorlba reapeotlvely the steam and gas engines
as the *objeotsw insured. On the baok of aaoh aohedule la printedthe saise

deflnltlon of “objaota an4 *aooIdent.m The deflnltlonof aooldent la:

*As reapeota any objeot aeaorlbad In this schedula, ‘Aocidant9shallmaa a sudden and aocldental breaking, defoxmIag,burning out **or** rupturltw of the objaot or any part theraor,whlah manifests ltaelfat the time of Its ooourranoa b# hadiately preventing continued operation or by Iamedlataly impairing the tunotiona 

### or tha objeot **and**whIoh neoaaaitatearapalr **or** raplaoamant baiojpa ‘itsoperation oan be raaumed or Its funotlona roatorad, but the breaking, deforming, **burning** or rupturing of any gasket or gland paoklng ahall not oonstltuta an aocldent,nor shall tha depletion of m8tSrIal in any part of tha objaot, due to 

## pitting, oorroalon or wear;be oonatrued as an lOdident.* Under SaotIon 1, the Company obligates ftaelf "To pay the Asnured for loaa on the property of the Assured direotly damaged

**by** auoh

looldent (or, if the Coa~panyao aleota, to rapalr **or** replaoe l uoh damaged property),* l xoludlng loss by fire and othar named eroeptlona.
Seotlon 11 has been exoludad from the policy.or. D. W. Stakes, Page #5.

Seotion III oblI.qstes the Company to pay "such amount8as theAssured shallbaoome obligated to pay by reason of tha lIabIlIty of the Assured ror lose on property of others dlreotlydamagedby euoh aooldent, InoludIng 1IabIlItyrOr loss of u8e of auohdamaged propertyor others," and to defend the assured In event of a cult agalnet him ror euoh damages.
Seotion IV obligatesthe Company to pay "euoh amount8 a.~ the Assured shallbecome ob,llgated to pay by reason of the liability of theA88ured, Including llablllty for lose or 88~-~ioe8,

on aooount of bodily injurlae (lnoludingdeath at any time resulting therefrom) eustalnedby any person and oauaed by auoh aooldent,* exaept llablllty or obllgation under any Workmen'sColPpaneatIon law, and to pay surgloalreller rendered at time of accident and to defend against any olalms or ault, ato.
SeotlonV obligates the COmpany to pay all coats taxed against theAssured in any legal prooeeding defendedby the Company In acoordanoewith Seotlone III or IV, sto.
In COOhy’8 Briei on the Law 0r Insuranoe (2ndEd.), page 325, It 18 saidr

There are three 01a68e8 Of liability inauranoe -- insuranoe againat llablllty for psraonal Injury to amployes, againat liability for injurlsa to pareons other than amployes, and against llablllty for injurlaa to all olaeaar Or ~r8Olt8.” Again, on page 11, the author eaysr
"80 far ae lnsuranoehas been daveloped wlth refsrenoe to aooldental injury to, Or destruotlon or property,a8 by explosion Oi bOIler8, breakage of gl888, and Injury generally by aooldent 8uOh aa injury to an automobile due to ooll&on, lnoludlng injury to, and slokno88 and death of animal8 Is known as 088Ualty inauranoe.*

It IS said in lbriployar*s Liability Aesuranoe OorporatIon V8. Merrill, 155 Lbass.404, 29 N. E. 529, that aooldent insuranoe IS oonfined to aooldenta reeultlng In Injury t0, or death or, human beinga. It8 ridd 18 not to ineureMr. D. W. Stakes, Page #a.

againet loe8 or damage to property, though oocaslonedby acofdent." "*Casaalty Ineuranoe'are words of quite freqU8nt ~843, yet it oamot be said that their deiinftionha8 been very aocurately eettledby the courts. Strlotly and literally *casualty* 18 perhapr to be limited to inJurIeswhloh arise solelyfrom aooidsnt wIthout any element of eonSOiOUS human design Or Intentional human agency; Or, 88 it 18 8~eth8 eXpre86ed, ineVit8bl8 acoldent, agalmt. somethbg not to be foresean or guarded

But in ordfnaryuaage 'ea8ualty,'like *aooIdant,*is quits oommonly applied to 108808 and inlarlaarhloh happen suddenly,an8xpeotsdly, not in the u8ual oour8e of eve&e, andwithout dedgn on part or the psreon surfsring rrcnu the Injury." Bankera' Wtnal Ca8nalty Co. vs. Plrat NationalBank or Council Bluris, 108 N.W. 1040, Wl Iowa 456.
Oenaral Casualty companiesmay be lnOOrpOr8tidunder theprovisiona of Artlole 4989, Raflsed Statutes,and may Includein their articles of lnoorpcuatlonany'one or all ofthe eleven purpoasrr anrrmsrated

in 8aldArtiola, a8 well as other8 if authorized by Saotlon 12 thereof. Seotlon 2 

### reads:

nfo lnaure against loss 

### or damage msultlng fraa l

ooldant to or Injury auetalnedby an saploye or other person 

### forwhioh aooident 

### or injury 

### thaaaaamd 18 liable.*

Under this Seotlon the ocapanymay write lnauranoe against llablllty for personal InJmy aq8talnedby an amaloyemmltlng from aooldant, soomonly known as *employ8r*8llablllty lnsuranoe.a It may al80 insure againat liabilityror InJuries to persona other than employee resultingfrocll

aoolUent for whloh the assured ia liable.
Seotion 8 provIde8r

To lneiuro

against 1088 

### or damagaa resdtlng from aooldont to or injury aulisredby any person rot wbloh 1088 and dapuge the Inrrured 18 llabl88 sxoeptlng smployerri liablllty insoranc8 a8 authorized ander Subdivision 2 of this htiOi8.”. .

!.:r. D. X. Stakes, Page #7.

Under this Seotlon the oompany may write the sent)kind of in8UranOe providedfor in Section 2, except employer's lIabIlItyInauranoe. The Inauranoa written under sections 2 and 8 may be properlyoalled "lIabllItyInsuranoe.*
Seotlon 5 reads:

"To insure against 1088 from injury to person or propertywhich reerults 8OCident8lly from steamboilers, elevators, eleotrioalderioes, engines and all maohlnery and applI#anoe8USed in oonneotionthemwlth or operated thsreby; and to lnsum boilers, elevators,eleotrloal devloe8, en&m, mschlnery and applianoee."
The polloy under oonslderation,while written by a foreign 0011pany, evidently with a permit to do bU8In888 in this State, is one oorerizg both injury to property and/ to any person sustaineda8 a result.otan ecoldent. It embraoeaboth oasualty and llabIllty olau8e8, suoh as may be written under Seotlon 6, quoted above.

It 18 apparent that the ln8nranoe for which the Coapeny has oontmoted to pay loss on the assumd*s property ~iI~~~~eoooa8iOn8d by aooldsnt 18 oasudlty,not lIablllty

Themrom, the premium on saidpolloy oannot be legall; **paid** out of an appropriation to pay Wllablllty In8uranoe.* The Leglslatnre la presumedto have known the dliferenoebetween the two ends of insuranceand the obamotar of rI8k8 belonging to each.
While ue hate dsoided that the olalm for the premium on this polloy oannot be paid out of the approprlatioa reterred to, aad that the 8amewa8 properly refused by the Caiptrollsr,ue will dlsou8s th8 ohamoter of the insurancesmbrao8d in Seotloaa S, 4, and 6.
If it **be** oonoeded that the ObligatIoaafi8umed by the company la said Seotion8may be olassed as "lIabIllty insuranoe,"then auoh obllgetione are ab8OlUtely ralusless to the aseured tor maooa8 which we wIl1 aow oon8ider.

In the first plaos, the aotual beneflolary 18 not the wTexaa Prison Board and/or Texas PrisonSystem and/or It.8 Eleoted or Appointed Oiiloerr,a but the State Of Texas. It is the State's property that la desorlbed ln the policy end it would be It8 property that would be damaged Or):I-. D. W. St8k88, Page #8.

destroyedIn the event of an aooldent. The olalm ror the premium is againet the State's funde. The State of Terse should have been named In the polloy ao tha "A88UCad." The ioregolag statement, of oouree, appllea to the polloyas awhole.
Under Seotioaa 3 and 4, the Company is only obligated topay to thaA68urad (whlohwamutitaseums is the Stats Of Texam) auoh amounts 66 the A88Ured shallbeoome obllcats4 to pay by reason oi its lIabllIty for 1086 on the propertyor Others, or ror parson61 injUrh8 to Other8, eto. The 

### 6rrtt0t or this agmwneat IS that 

### if thera Is no llabIllty oa the part or the State, there la aona on the part oi the Oampany. Tha Ompaay Is only obllgated to pay to the State or to thO86 who suffer loss under tha teams oi the oontraot auoh auras as the State shall b8 obligated to pay by reason of its llablllty to auoh third rmr8oaa.

It la now the astabliahad~law or this State that tha Stat6 la aot liable for the torte or nagllgenoa oi Its OrriOerB,-

agents or 68nanta engaged in the periormsnoa or a gotenuseatalfiaotlon uhlaaa it has rirst axpra8aly 886tUUedauah llabIlIty. Brook v. State, 58 6. W. (2d) 534, error reruaad;Gothsr v. State at al, 106 8. W. (Zd) 1104,and the authorities there oltad. Suoh liability, the State has navar assumed. Brooks 'I.State, aupr8. It has provided Uorbaen*a Caapomatlon Iaauranoe ior oertala olanaae oi tha Highway Dspartmaat*a employaa, (Art. 66746 et 88q., Vornoa'a Texas Btatutsa, 193S Supp.) rhloh statuteshare 

### nol pplloatloa here.
The emotion aad operation 

### 0r prlaona and jalla,whathar by tha Stats, a oounty or a munlolpallty, is purely a governmental 

### runotlon,being an lndlapaaaablapart of the adminiatratlon or the orlmlnal law." Corbatt v. St. Vlnoant*a Industrial Sohool.,177 N. Y. 16, 68 N. E. 997; 21 R.C.L. 1168.

It la also a wall established ale of law that in tha abaaaoa ol a statute, a state la not liable to a oonviot ror InjurIea 

### l

uatalaad by him as a result of the neuligenoe 0r a prison employe, whether the oonviot isworking OUt8i.46

or Ins148 the place Of iJRprI8o!Iment. clodreltert!r. D. W. Stnkes, Fage #O.

VB. State, 80 N. C. 51, 41 Am. Rep. 440; Lewis '1. State, 96 N. Y. '71, 41 Am. Rep. 607; 21 R. C. L. 1182.
Should an "aooIdentR oocur to the "object8R ineumd, resulting la loss or property to others, in lnjurlea to ooavIota, 8mploye6,and to other persons,what la the State's llablllty?
wAooldentm is an event whloh ha8 happenedwlthout a party.8 romelght or foreknowledge orwithout "faultai the personwho is ohargad. It is a oatastropha tiloh has oooumd wlthout wnegligenoe" oa the Part of eitherparty. SOTex. hr. 693, Sec. 20. In the case of Dallas RaIlray& TermIn Co. '18. Allen, 43 6. 1. (2d) 165, 170, error dbm.issed, the oourt aaid:

-By l ooldent 18 meant auoh an unaXpaOt8d oatastropheas ooourawithout any aas* being to blema ror it; that la,without anybody's being guilty of.aegllgeaoe in doing or per-. mlttlng to be done or amittlng to do the particular thing that 04N8ed auah aaaualty.w
The rule or non~llabllltyror parson81 injuries reoelved or damages to property auetained as result Of aoaldent is utnounoed **by** the Ooawileaion OfAppeal in the case of Eberaole ~8. Sapp, 206 9. W. 156, to be:

"33 the injury reaultl%g rrom the aot could have been reasonably antlolpated or foreeesa by an ordinary prudent Parson, la the axeralaa of ordluary oam, the oaaurmnoe la aot aaoldental. It, however, the injury oould not have been romeseen or aatlalpeted, it Is an aooldant ror whloh them 18 no legal redm88.”

When an acoldent oooura resulting in lnjnry to Property or person there la ao legal lIabIlIty oa the part Or any one, hanoa no legal redress. Therefore, it nabmally rollae that the Stats would not be liableior dasrage done to propsrty owned by another, or for pereonal lnjurlea sustainedby its employee oonvlota, or any other personas a reeult 0r aa aaooldent;wwhether auah aooldent wa8 unavoidabla or due to negligence. Thererote, under all seCtIons, exoept No. 1, of tha policy, II the stateu,-.3. T.St8ke8, Page #lo.

IS not 80 liable, the Company 18 not liable. The proteatlon rhlohthe polloy attempt8 to give the State is no protection whatever. Should the State pey the prcmlum, It would pay for onlya 8UppO8edprotection, doesnot need, aomethlng It does not get,

and already h88 beOaU88 Of it8 sovereignty. Statev. Bnmnan et ux, 111 9. W. (24) 347, error refueed.

You are advieed that It Is OUT opinion thet the premium
on the polloy Under aonaIderatIoanraynot be legally paid fromthe atxrrent

appropriationmade to the Texas Prlaoa systemto pay alIabIllty insurance pr8mIum8.W

Yours very truly