CHAPTER X. WORKMEN'S INSURANCE IN SPAIN. INTRODUCTION. Spain is probably the least industrially developed country of western Europe, a very large proportion of its population being engaged in agricultural pursuits. Unfortunately the statistical information concerning Spain is very scant. The latest occupational statistics, published by the Instituto Eugrafics y Estadístico, refer to 1889. They showed the following distribution: POPULATION OF SPAIN BY OCCUPATION OR INDUSTRY, 1889. Thus of about 7,000,000 persons with known occupations, industry (textile and mineral) claimed only 3 per cent and agriculture nearly 70 per cent. Adding together industry (textile and mineral) with arts and trades gives, for 1889, only a little over a million (1,067,177), or about 15 per cent of all persons with known occupations. While the industrial activity of Spain must have increased considerably during the last twenty years, it is still very much below the other countries of western Europe. Only the first steps have as yet been made by Spain in the field of workmen's insurance. The present status may be summarized in very few words: Only two important measures have been passed in Spain concerning this field of labor legislation—the accident compensation act of January 30, 1900, and the act of February 27, 1908, establishing a national institute for old-age pensions, which began operations in 1909. The first-mentioned act introduced in Spain the system of compensation of workmen for industrial accidents in place of the older system of employers' liability. While putting upon the employer the entire cost of such compensation, the Spanish act leaves the question of insurance to the option of the employer, though it endeavors to regulate and control the insurance companies writing accident insurance. The old-age insurance institute act of February 27, 1908, establishes only voluntary insurance of workmen. against old age at their own cost, but with some subsidy from the State. Thus the entire system of workmen's insurance in Spain is voluntary. The same holds true in sickness insurance, as far as this term can be used, there being in Spain a certain number of mutual benefit societies, whose most important function is mutual help in case of sickness. The membership of these societies is not very large, and any information concerning them is difficult to obtain. This chapter of the report, therefore, treats principally of accident insurance. The history of the law of 1900 is followed by an analysis of its provisions, by a few data concerning its applications, and by an account of the efforts made during the last decade toward the reform and extension of the law. Statistics of accidents in Spain are so unsatisfactory that only the most important data are reproduced. In connection with the question of sickness insurance only some statistical information concerning the mutual benefit societies can be given. Under the caption of old-age insurance an account is given of the history of the efforts of the Institute of Social Reforms to establish a national old-age insurance institute, which efforts terminated in the act of 1908, the provisions of which are analyzed. Mention is also made of an interesting proposal to introduce a system of modified life insurance for workmen as a function of the national oldage insurance institution in connection with the proposal of a law to encourage home owning among the Spanish workmen, such life insurance to act as security for the home in case of death of the purchaser. It is evident that Spain is not a leader in the field of workmen's insurance. It is following slowly the example of other Latin countries of Europe. ACCIDENT INSURANCE. HISTORY. The accident compensation act (or "law in regard to industrial accidents," as its official title reads) of January 30, 1900, represents the most important Spanish legislation in the domain of labor insurance. Until the enactment of this law the compensation of workmen for industrial accidents was based upon the criminal and civil liability provisions of the Civil Code, which provisions were derived from the Roman legal ideas of responsibility for the results of one's acts or for the acts of one's agent. Articles 1902, 1903, and 1908 of the Spanish Code are identical with articles 1382, 1383, 1384, and 1386 of the Code Napoleon, in effect in France and in Belgium, and the same requirements are found in the laws of Italy, Switzerland, Holland, etc. The results in Spain of the application of the laws relative to industrial accidents did not differ much from the results obtained in other European countries. By far the larger number of industrial accidents were uncompensated, while in the remainder compensation could be obtained only after expensive and prolonged litigation. It was stated by the Spanish delegate to the Third International Congress of Industrial Accidents and Social Insurance, held at Milan in 1894, that the absence from the Civil Code of any compensation provisions and the difficulty experienced in fixing the employers' liability had caused great neglect of all safety provisions and therefore increased the frequency of industrial accidents. The shortcomings of the Civil Code were recognized as early as 1883, when the commission for social reforms (Comisión de Reformas Sociales) was organized to investigate the economic condition of labor in Spain. The question of compensation for industrial accidents was considered as one of the most important by the commission, and by June 7, 1887, it had formed the plan of a new liability act; but it took nearly thirteen years for an accident compensation law to be carried through the Spanish Cortes. The history of the repeated efforts in behalf of the injured workmen presents a picture of evolution from old to new socio-legal notions relative to employers' liability, a process of evolution which is far from complete, for, as will be shown presently, earnest efforts are still being made to extend and strengthen the law of January 30, 1900. The bill formulated by the commission on June 7, 1887, proposed to extend the liability of the employer to all accidents which were not due to the negligence of the employee or to chance (whether "vis major," or ordinary chance). The burden of proof was to be shifted from the plaintiff to the defendant-i. e., from the employee to the employer. The employer's responsibility was to be taken for granted, unless he could establish that the accident was due either to the negligence of the injured employee or to unavoidable chance. Thus the shifting of the burden of proof was the main proposed deviation from the old law, since the employer as before was to be responsible only for accidents due to his own or to his agents' negligence; moreover, the employer could withhold from the salary of the responsible agent the amount of indemnity he was sentenced to pay. While the Civil Code makes the person guilty of negligence responsible for the whole amount of damages caused, the bill recommended by the commission in 1887 limited the amount of responsibility. When contributory negligence of the injured person was established the courts were to adjust the claims to the respective degrees of negligence of both sides. This legislative plan was referred to a committee of the Senate, which returned it to the commission for social reform with instructions for further elaboration, suggesting that special attention be paid to the subject of prevention of accidents, and also to the creation of voluntary mutual insurance associations. (a) The further study of the problem by the commission of social reforms led to the legislative plan offered by the commission on May 2, 1891.() This represented a step forward as compared with the plan of 1887, though the commission again took a middle ground between the principles of liability and compensation or insurance. The details of the plan were somewhat unique. The unavoidable character of certain accidents in industrial life constituting the so-called trade risk was recognized, and the principle of placing the responsibility for the results of such accidents on the industry as such was admitted. But an effort was made to draw a strict line of demarcation between such industrial accidents and "ordinary accidents" due to somebody's negligence, and it was thought that such "ordinary accidents" need not be treated any differently in industrial life than when arising under ordinary conditions and therefore should remain subject to the provisions of the Civil Code. While admitting the unsatisfactory condition of the problem under existing legislation, the commission concluded not to accept compulsory insurance as the best solution, using as arguments against the adoption of the German plan the high cost to the industry and the danger of encouraging carelessness on the part of employer and of employee. The commission recommended that all accidents be divided into three classes: According to the employers' responsibility, to the injured employee's responsibility, and to the industrial responsibility or trade risk; only the latter class of accidents to be included under the proposed law. Such a law, in the opinion of the commission, had ten definite objects to accomplish: (1) Distinguish between an ordinary accident and an accident due to the nature of the industry; (2) leave the ordinary accidents under the jurisdiction of existing legislation and limit the special law to the "industrial accidents" proper; (3) define as carefully as possible what should be considered an industrial accident; (4) prepare a list of dangerous and health-injurious industries; (5) prepare a list of the most efficacious means and apparatus for the prevention of the more frequent accidents in each industry; (6) establish a graduated scale of compensation to the injured workmen who are entitled to it, from temporary and partial incapacity to fatal cases; (7) make the compensation depend upon a Arbeiter Versicherung im Auslande, Dr. Zacher, Heft XV, pp. 17-19. earnings; (8) provide industrial tribunals (mixed juries) for deciding the questions of trade risk; (9) call labor delegates to testify regarding industrial accidents; (10) extend the jurisdiction of the special tribunals over the state industrial establishments. The text of the legislative draft of 1891 endeavored to meet these requirements. An industrial accident was defined as an accident caused by the force or the speed of motors or machines, by the dangerous or injurious nature of substances employed in the industry, or by the condition of the atmosphere or the surroundings in which the employee is necessarily placed while at work. The Government was to publish complete lists (1) of the dangerous or injurious industries and (2) of apparatus and methods for prevention of accidents, with necessary explanations and diagrams. These lists were to be kept up to date and revised every five or ten years. The financial responsibility for such accidents was to devolve upon the enterprise. In order to measure and determine the responsibility it was to be ascertained to what extent the management of the establishment had made use of the preventive measures enumerated and described in the list. The employers were to be permitted to insure their employees, provided the indemnities to be paid by insurance companies were not below those prescribed by the proposed law. According to the draft of the law trade courts were to be established, which were to handle the cases and were to determine the amount of compensation to be paid; and labor delegates were to be heard in each case of industrial accident. Other accidents were left subject to the Civil Code. (") On June 5, 1894, the Government introduced in the Cortes a bill in accordance with the commission's recommendations. In doing it, the Government largely used the text prepared by the commission, but introduced two important modifications. (") In order not to burden the home industry with excessive charges and because of the low standard of wages in the country, the scale of indemnity was reduced in nearly every case. The second important modification referred to the trade tribunals, or mixed juries, as they were designated in the original draft of the commission. The commission simply mentioned these tribunals as the proper jurisdiction for cases under this law, intending to introduce a special bill for their organization. In order to prevent the delay which would result from preparing this special law and to expedite the enforcement of the compensation laws, the Government introduced into its draft of the bill a few paragraphs relating to the organization of special tribunals. These were to consist of the mayor (alcalde) as chairman ex officio, and six members, namely, an attorney, an engineer, an employer, and a municipal a Congrès International, vol. 2, 1891, p. 417 and ff. b Ibid, vol. 5, 1894, pp. 155–158. |