SNOW WHITE ICE CREAM & ICE DROP FACTORY AND/OR JOSE FUTCHIAN CHING (SHOULD BE SO DEE), PETITIONERS, VS. EMILIO GARCIA (DECEASED), SUBSTITUTED BY:  JOVITA LOZANO VDA. DE GARCIA, …

The specific legal question raised in this petition for the
review of a decision of the Workmen’s Compensation Commission is new, but not
the governing principle decisive of the matter, which is well-settled.  It is whether the employer-employee
relationship existed between the claimant Emilio Garcia, now deceased, who in
his lifetime was an ice drop vendor, now substi­tuted by his heirs, the private
respondents,^[1]
and petitioner Snow White Ice Cream and Ice Drop Factory.  Both the hearing officer and the then
Associate Commissioner Jose Sanchez of respondent Commission answered the
question in the affirmative.  There was an appeal to the Commission, which
issued a resolution of affirmance, as a majority vote
to set aside the award was lacking, Chairman Nieves Baens
del Rosario voting to sustain and the other member Cesareo
Perez voting to reverse, the aforesaid Commissioner having retired in the
meanwhile.  There was a motion for
reconsideration, but with the two Commissioners standing pat, the result was
the same.  Thus the award was not set
aside.  Hence this petition for
review.  It is our holding, as will
hereafter be more fully explained, that there was an existence of an
employer-employee relationship based under the governing principle of the
controlling test first announced by this Court through Justice Makalintal in Investment Planning Corporation v. Social
Security System.^[2]

According to the decision of Commissioner Sanchez, the then
claimant, now deceased, Emilio Garcia “began working with the respondent
as an ice drop vendor in 1953.  He was
paid on commission basis of P0.02 per ice drop that he sold, thereby earning
approximately P7.00 a day, seven days a week. 
As such vendor, his duties consisted mainly of breaking into small
pieces the block of ice given to him, and placing them in the ice drop
push-cart to prevent the ice drops from melting.  Claimant, when not selling ice drops,
repaired broken down pushcarts belonging to the respondent, being also a carpenter
by occupation.  It appears that on July 27, 1960, while preparing the
pushcart assigned to him for peddling, a block of the ice he was carrying fell
on his right foot, smashing three of his [toes].  After a week of medication, he resumed his
work despite the fact that he was still limping; that while pushing the ice
drop pushcart along Solis Street,
Tondo, Manila,
his swollen right foot was hit by a barbed wire.  Claimant, however, continued working until August 27, 1960 when he stopped as he
could no longer withstand the pain and chilling sensation that he
suffered.  He was brought to the North
General Hospital
where his right foot was amputated below the knee, the abscess having already
become gangrenous.  He remained in said
hospital until September 16, 1960.  Dr. V. Roldan, a
private physician, continued treatment on the claimant while at home until the
amputation wound was completely healed nine months thereafter.  Claimant alleged that he spent the total
amount of P700.00 for said
treatment.”^[3]

The facts which, according to him, were established, follow:  “1. 
Claimant was charged P.03 by the respondent for every ice drop that he
gets which, in turn, he sells to the public at P.05 each; 2.  Claimant returned the unsold ice drops with
full credit; and 3.  Claimant was
supplied by the respondent with crushed ice, icepicks,
salt, and cap and ice drop pushcart bearing respondent’s trade name.”^[4]
Accordingly, in his decision of July
15, 1963, he found for the claimant, thereafter substituted upon
his death on September 3, 1962
by the legal heirs, now private respondents, the circumstances in his opinion
being not merely indicative, but actual proof, of employment and the injuries
sustained occurring while in the performance of his duties.  A motion for reconsideration was filed with
respondent Commission.  It was denied
under the circumstances previously indicated. 
Then came this petition for review.

As noted at the outset, we find for private respondents and
sustain the award in their favor.

1. Under the controlling test as clarified by Justice Makalintal in the aforesaid Social Security System v. Court
of Appeals,^[5]
the criterion is whether the person or firm alleged to be the employer can
direct or require the party assertedly enjoying the
employee status to do a certain kind of work and to specify the means and
methods by which the same is to be accomplished.  As was emphasized by Justice Makalintal in the above decision:  “The logic of the situation indeed
dictates that where the element of control is absent; where a person who works
for another does so more or less at his own pleasure and is not subject to
definite hours or conditions of work, and in turn is compensated according to
the result of his efforts and not the amount thereof, we should not find that
the relationship of employer and employee exists.”^[6]
From the facts as found, which we are not at liberty to disregard, the deceased
claimant was an employee of
petitioner.  While this is the first case
of its kind in the Philippines, it is not so in the United States.  Thus
from Larson’s authoritative treatise on Workmen’s Compensation Law:  “Just as the employer may buy his raw
materials outright from an independent businessman, so he can distribute his
product by turning it over completely to a jobber who is an independent
businessman.  But, since disposition of
the product is normally an inherent part of any business, there is an
increasing tendency to indulge a presumption that salesman, distributors, and deliverymen
who fall short of the status of businessmen holding themselves out to the
public as such are employees.  The
circumstance that the salesman is devoting his entire time to the distribution
of the one employer’s product is, in most lines, an indication that he is an
employee.”^[7] An American case cited by him, Cooper v.
Colonial Ice Co.,^[8] lends support to the above view.  As was pointed out by Larson:  “It is a stronger case for employment,
in that the iceman did not own the ice wagon he used.  It is weaker in that the ice, in form at least,
was sold to the driver at $1.20 a block with his compensation coming out of the
difference between that price and his resale price of $1.80.  The privilege of returning unsold ice for
credit tends to discredit the validity of the ‘sale.’ However, the driver’s
business consisted not only of orders received by the company but also of
whatever orders he himself could get. 
There was some control, in that the driver had to begin work at 7 A.M. and quit before dark.  He was held to be an employee.”^[9]

2. With the decisive question thus answered in favor of private
respondents, it is quite clear why the award in their favor should be
sustained.  The second alleged error as
to the delay of fourteen months in the filing of the claim for compensation
after the alleged injuries does not suffice to call for a reversal in the light
of the impressive number of decisions rendered by this Court.  As was held in a recent case, Operators,
Incorporated v. Cacatian:^[10]
“It is much too late in the day to complain about the long delay in
instituting the claim here of seven years. 
This Court in 1965 categorically declared that the failure to file a
claim within the statutory period does not affect the jurisdiction of the
Workmen’s Compensation Commission.  Such
a doctrine found mention in a 1968 decision, Pampanga
Sugar Mills v. Vda. de Espeleta,
citing two cases decided the year before. 
In the first, it took the claimant eight years and in the second, nine
years before the right to compensation was sought to be enforced.  Its non-jurisdictional character was stressed
anew in Victorias Milling Co., Inc. v. Workmen’s
Compensation Commission, announced less than two months later.  To the same effect are later cases likewise
of 1968 vintage.  We have had occasion
this year to rule similarly.”^[11] No discussion need be made of the
third alleged error, being a question of fact, the determination of which by
the Workmen’s Compensation Commission is to be respected.  The fourth alleged error as to the effect of
a tie vote is likewise unavailing.  A
recent work on the Workmen’s Compensation Act discusses the matter thus:  “Any party in interest may seek the
reconsideration of the decision or order of a member of the Commission by the
Commission en banc by filing a motion or petition for reconsideration
within ten (10) days from receipt of said decision or order.  Upon the filing of a motion or petition for
reconsideration, the Commission en banc shall resolve the
same.  Two affirmative or negative votes
shall decide the appealed case.  In case
of a tie vote, the case shall be calendared for another voting by the
Commission en banc, and if this second vote again results in a
tie, the original decision or order shall be deemed affirmed.  As provided for in Sections 2 and 3 of Rule 17,
the rules for the format of the motion or petition for reconsideration and that
for extension of time to file said motion or petition in the Commission level
is practically the same as that in the regional level.”^[12]

WHEREFORE, the award in favor of the private respondents,
as set forth in the decision of the then Associate Commissioner Sanchez of July 15, 1963, is affirmed.  With costs against petitioner.

Concepcion, C.J., Reyes, J.B.L.,  Makalintal, Zaldivar, Ruiz Castro, Teehankee,
Barredo, Villamor, and Makasiar, JJ., concur.

^[1]
The private respondents are:  Jovita Lozano Vda. de Garcia, Rodulfo Garcia, Angelita Garcia,
Maria Garcia, Emilio Garcia, Jr. and Corazon Garcia.

^[2]
L-19124, November 18, 1967,
21 SCRA 924.

^[3]
Decision, Appendices of Decision and Resolution for Brief of Petitioners, pp.
VIII to IX.

^[4]
Ibid, pp. X to XI.

^[5]
L-19124, Nov. 18, 1967, 21
SCRA 924.

^[6]
Ibid, p. 932.

^[7]
1A Larson, The Law of Workmen’s Compensation, 708 (1970).

^[8]
51 SE 2d 889 (1949).

^[9]
1A Larson, The Law of Workmen’s Compensation, 709 (1970).

^[10]
L-26173, October 31, 1969, 30 SCRA 218 citing Manila Railroad Co. v.
Perez, L-20171, June 29, 1965, 14 SCRA 504; Nat. Dev. Co. v. Ayson, L-23450, May 24, 1967, 20 SCRA 192; Nat. Dev. Co. v.
Rongavilla, L-21963, Aug. 30, 1967, 20 SCRA 1172; Victorias Milling Co., Inc. v. Workmen’s
Compensation Commission, L-25640, March 21, 1968, 22 SCRA 1215; Pampanga Sugar Mills v. Vda.
de Espeleta, L-24073, Jan. 30, 1968, 22 SCRA 325; Surigao Consolidated Mining Co., Inc. v. Workmen’s
Compensation Commission, L-26077, May 27, 1968, 23 SCRA 820; Manila Railroad
Co. v. Rivera, L-23021, May 29, 1968, 23 SCRA 922; San Miguel Brewery v.
Vda. de Joves, L-24258, June 26, 1968, 23 SCRA 1093; Victorias Milling Co., Inc. v. Dadivas,
L-24985, March 27, 1969, 27
SCRA 413.

^[11]
Ibid, pp. 224-225.

^[12]
Pucan and Besinga, Comments
and Annotations on the Workmen’s Compensation Act, 519 (1971).