Viana vs. Al-Lagadan es cannot be accepted.

In determining the existe

FACTS:
The fishing sailboat “Magkapatid”,owned by Ana
stacio Viana, had a collision with a U.S. Navy ve
ssel and sunk to the waters. Alejandro Al-
Lagadan, a member of the crew of the former dis
appeared with the craft. Workmen’s Compensati
on Commission ordered Anastacio Viana to pay
the claimants, Alejo Al-
Lagadan and Filomena Piga. Petioner said, how
ever, that this case does not fall within the purvie
w of Act No. 3428, because Alejandro Al-
Lagadan was, at the time of his death, industrial
partner, not his employee. He further contended
that they were in a share basis—
owner of the vessel, on one hand receives one-
half of the earnings of the sailboat, the other half
is divided pro rata among the members of the cr
ew. The trial referee said, as well as the Workme
n’s Compensation Commission that there was a
n employer-
employee relation between the Respondent and
the deceased, Alejandro Al-
Lagadan, and the share which the deceased rec
eived at the end of each trip was in the nature of
‘wages’ which is defined under section 39 of the
Compensation Act. This is so because such shar
e could be reckoned in terms of money. In other
words, there existed the relation of employer and
employee between the Respondent and Alejand
ro Al-Lagadan at the time of the latter’s death.
nce of employer-
employee relationship, the following elements ar
e generally considered, namely:(1) the selection
and engagement of the employee; (2) the payme
nt of wages; (3) the power of dismissal;(4) the po
wer to control the employees’ conduct —
although the latter is the most important elemen
t (35 Am. Jur. 445). Assuming that the share rec
eived by the deceased could partake of the natur
e of wages and that the second element, therefo
re, exists in the case at bar, the record does not
contain any specific data regarding the third and
fourth elements.
Furthermore, the report contained that the patro
n selects and engages the crew, and also, that t
he members thereof are subject to his control an
d may be dismissed by him. To put it differently,
the literal import of said report is open to the con
clusion that the crew has a contractual relation,
not with the owner of the vessel, but with the pat
ron, and that the latter, not the former, is either t
heir employer or their partner.
The case was remanded to the Workmen’s Com
pensation Commission, for further proceedings i
n conformity with the decision of the Supreme C
ourt.

ISSUE:

Whether or not the mere fact that a person’s sha

re in the understanding “could be reckoned in ter
ms of money”, sufficed to characterize him as an
employee of another.

HELD:

No, the Court did not share with the Trial Refere
e and Commission’s view. However, petitioner’
s theory to the effect that the deceased was his
partner, not an employee, simply because he (th
e deceased) shared in the profits, not in the loss