tercation concerning the work. These cases are Heitz v. Ruppert, 218 N. Y. 148, 112 N. Ē. 750, L. R. A. 1917A, 344, American Steel Foundries v. Melinik (Ind. App.) 126 N. E. 33, Polar Ice & Fuel Co. v. Mulray, 67 Ind. App. 270, 119 N. E. 149, and Pekin Cooperage Co. v. Industrial Commission, supra. Another case, Stasmos v. Industrial Commission, 80 Okl. 221, 195 Pac. 762, although decided on the authority of Leonbruno v. Champlain Silk Mills, supra, was clearly a case where the injury was caused by an altercation concerning the employment, inasmuch as the employee was injured as the result of an altercation with his foreman over which of two lifts he should use in leaving the shaft in which he was working, the mine having been shut down suddenly and the employees ordered to the surface. The English cases of Thom v. Sinclair [1917] App. Cas. 127, and Dennis v. White and Company [1917] App. Cas. 479. contain valuable discussion of the phrase "arising out of the employment," but the facts are dissimilar, and they do not assist in a decision of the case at bar. While the authorities cited above from New York and Oklahoma lay down the rule contended for by respondents, we are not prepared to concede that they represent the general trend of authority on the subject. We do not think, therefore, that these authorities would justify. us in overruling the settled law of this state as laid down in Coronado Beach Co. v. Pillsbury, supra, and Fishering v. Pillsbury, supra, approved in the late case of Federal Mutual Liability Insurance Company v. Industrial Accident Commission, 201 Pac. on the subject of injuries received by an employee through horseplay. It cannot be held that all injuries so received in the course of the employment arise_out of the employment. It may be remarked that the recent case of General Accident, Fire & Life Insurance Corporation v. Industrial Accident Commission, 200 Pac. 419, is in harmony with the rule expressed in Mueller v. Klingman, supra, and the similar cases. In that case the injured employee was repairing a tire in a garage a short distance from where his employer and a stranger became engaged in a quarrel over the purchase of gasoline by the latter. The employer shot at the stranger, and the bullet glanced and struck the injured employee, who had not participated in the quarrel. The question presented in that case was whether the injury arose out of the employment. Mr. Justice Shurtleff, in writing the opinion of the court, said: "In the present case the injury is largely, if not wholly, traceable to the acts of the employer. The controversy in which it was received arose out of an incident which concerned his business, namely, an application to purchase gasoline. That it ultimately resulted in a personal difference or that the accident was an unusual one, not likely to occur, does not deprive it of its business character or establish that it did not arise out of the employment. * * What are termed the 'horseplay' cases, and the rule in them announced, have no application here. The injury sustained by Shrout was not due to skylarking or a frolic, but was received in the course of a series of incidents which had their initiative in a business transaction of his employer and while the latter was actively and justifiably engaged in defending his business." * In the case at bar it is not claimed or shown that the scuffling was habitual, that the employer had any knowledge of the horseplay, or that it had any other characteristic which would make it a risk of the employment. The injury was an unfortunate accident which had no connection with the employment, and did not arise out of it. The employer should not be held liable. The award is annulled. We concur: Wilbur, J.; Sloane. J.; Shurtleff. J.; Shaw, J. BURKE v. INDUSTRIAL COMMISSIIN ET AL. (No. 10136.) (Supreme Court of Colorado. Nov. 7, 1921.) 201 Pacific Reporter, 891. MASTER AND SERVANT · DISCHARGED TAXICAB DRIVER HELD NOT AN "EMPLOYEE WITHIN COMPENSATION ACT BY RATIFICATION. Where driver of taxicab was discharged from his employment and thereafter, without employer's knowledge or consent, took on a trip persons who had the day before requested the employer that he be chosen as driver for the trip, and was killed on the trip, and the passengers thereafter paid the employer for the trip, the relation of master and servant did not exist under the Workmen's Compensation Act at the time he was killed, and his dependents were not entitled to compensation; neither the doctrine of ratification nor estoppel being applicable. (For other cases, see Master and Servant, Dec. Dig. § 361.) (For other definitions, see Words and Phrases, First and Second Series, Employee.) Error to District Court, City and County of Denver; Charles C. Butler, Judge. Proceeding by Mary D. Chadwick and William Chadwick, the widow and minor child of John B. Chadwick, under the Workmen's Compensation Act, to obtain compensation for his death, opposed by John F. Burke, the employer. There was an award of compensation, which was affirmed in part and reversed in part by the district court, and the employer brings error. Reversed and remanded. George J. Lemmon and John R. Smith, both of Denver, for plaintiff in error. Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for Industrial Commission. John E. Rinker, of Denver, for defendants in error Chadwick. BAILEY, J. The case is here on error to review a judgment of the district court of the City and County of Denver, affirming in part and reversing in part, an award of the Industrial Commission of Colorado. Claimants are the widow and minor child of John B. Chadwick, who suffered injuries from which he died, while driving an automobile belonging to John F. Burke, proprietor of a taxicab line, operating in and about the City of Denver. It appears that Burke, in conducting his business, employed from four to fourteen drivers, and that in the summer season many of his men and machines are engaged in transporting passengers to and from various mountain resorts. Decedent had been so employed by Burke for some considerable time. On the day preceding the accident a party of Texas tourists arranged with Burke for a trip to Estes Park, and requested that Chadwick be sent as driver. Burke replied that he would try to get Chadwick, but could not guarantee to do so. At that time Chadwick had driven a party to Colorado Springs. He returned the same evening, and in consequence of complaints received by Burke of Chadwick's careless and reckless driving on that trip was then and there discharged, and directed to report at the office in the morning for a settlement. The next morning, the day of the accident, Chadwick, instead of reporting at the office as directed, took the car he had been accus tomed to drive, called for the party of tourists who had previously arranged with Burke for the Estes Park trip, and left with them. This was without the knowledge or assent of Burke, and directly against and contrary to his specific orders to the effect that Chadwick should come to the office on that morning for settlement of his accounts, because of his discharge upon the previous evening. While making the return trip from Estes Park, Chadwick attempted to turn the car out of a rut on a muddy road, when it upset. pinning him underneath, resulting in injuries from which he died a few days later. The passengers were brought to Denver, and later paid Burke the regular fare for the trip. The Commission failed to directly find that Chadwick had been discharged, but from irresistible inference did so find in that it declared that Burke in accepting payment from the tourists ratified the act of Chadwick in going out for the trip, which acceptance of payment by Burke the Commission held reinstated Chadwick as an employee. The Commission's findings for all practical purposes were findings that Chadwick was not in the employment of Burke at the time of the accident. That he was not in such employment at that time is conclusively established by the proofs, the testimony of four witnesses to the effect that Chadwick was discharged on the evening before the accident being absolutely uncontradicted. There is no conflict in the testimony upon the fact of Chadwick's discharge, and the question of his reinstatement is strictly one of law and not of fact. The Commission found that he was an employee solely upon an alleged ratification by Burke of his act in taking the car. without authority as above noted. This view was adopted by the district court. It seems clear to us that the acceptance by Burke of pay for the use of his automobile and equipment could have and did have no effect whatever upon the status of Chadwick. Chadwick was either an employee of Burke at the time of the accident, or he was not. If he was not, then we fail to see how any subsequent act of Burke in dealing with third parties could change Chadwick's relations to him. Whatever the law may be upon the subjects of ratification and estoppel, under the circumstances here shown, as applied to third persons, manifestly, as between Burke and Chadwick, upon the undisputed facts, neither the doctrine of ratification nor estoppel has the slightest application, and both the Commission and the district court were in 'error in holding to the contrary. If Chadwick. was not in the employment of Burke when injured his heirs have no standing under the Workmen's Compensation Act (Laws 1919. p. 700). It conclusively appears that when Chadwick was injured, he had been discharged, and was a mère volunteer, wrongfully engaged in driving the Burke car: The law must leave him where it finds him, for since that situation was brought about by his own wilful and deliberate wrong, upon no possible theory is he or are his dependents in position to ask or receive compensation at the hands of Burke. Since the case is determined upon this particular point, it becomes unnecessary to either consider or decide any of the many other interesting and important questions argued and submitted. Judgment reversed and cause remanded. HASSELL IRON WORKS CO. ET AL. v. INDUSTRIAL COMMISSION ET AL. (No. 10086.) MASTER AND SERVANT EVIDENCE HELD TO SUPPORT COMPENSATION AWARD FOR DEATH BY LIGHTNING. Evidence held to support a finding that the death of an oxyacetylene welder by lightning while working on a steel bridge was caused by an accident arising out of his employment within Workmen's Compensation Act 1915, § 8. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) Error to District Court, El Paso County; J. W. Sheafer, Judge. Proceeding by Elizabeth Hrutkai on behalf of herself and minor children of John Hrutkai, for an award under the Workmen's Compensation Act, opposed by the Hassell Iron Works Company, employer, and the Ocean Accident & Guarantee Corporation, insurer. The employer and insurer brought action in the District Court to set, aside the findings and award of the Industrial Commission. Judgment for the defendants, and the plaintiffs bring error. Affirmed. Fred W. Varney and Chas. W. O'Donnell, both of Denver, for plaintiffs in error. Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for Industrial Commission. Martin M. Burns, of Colorado Springs, for defendant in error Elizabeth Hrutkai. ALLEN, J. This is an action brought in the district court of El Paso county to set aside the findings and award of the Industrial Commission in the matter of a claim presented under the Workmen's Compensation Act. The district court confirmed the findings and award, and plaintiffs bring the cause here for review. The claim for compensation filed with the Industrial Commission was made by and on behalf of the dependents of a deceased employee, one John Hrutkai. The findings and award were in favor of the claimants. The claim was resisted by the employer and the insurer, plaintiffs in error here and plaintiffs below. The findings of the Commission, so far as now material, aré as follows: "That John Hrutkai, deceased, was killed by an accident arising out of and in the course of his employment while performing services arising out of and in the course of his employment while working for the * * employer at Ship Rock, N. M., on September 9, A. D. 1918. That while so employed and while engaged in operating an oxy-acetylene torch and wrecking a steel bridge on an island in the San Juan river, near Ship Rock, N. M., the said John Hrutkai was struck by lightning, death resulting instantly. That his death was the immediate result of the accident above described, and arose out of and in the course of his employment. * * * "" The objection of the plaintiffs in error to the findings and award of the Commission are stated in various ways in the complaint and in the assignment of errors, but they may be summed up in this, namely, that there is no evidence to support the finding that the accident arose out of the employment. The materiality of the objection, as thus stated, results from that provision of section 8, c. 179, Session Laws of 1915, which makes it one of the conditions precedent to the right to compensation that the injury or death of the employee be proximately caused by accident arising out' of his employment. The only question that need be determined upon this review is whether there is evidence to support the finding that the accident arose out of the employment. In Passini v. Industrial Commission, 64 Colo. 350, 171 Pac. 370, this court said: "This court may consider only the legal question of whether there is evidence to support the findings, and not whether the Commission has misconstrued its probative effect. The award is conclusive upon all matters of fact properly in dispute before the Commission, where supported by evidence, or reasonable inference to be drawn therefrom." The employee concerned in the instant case was killed by lightning. It is claimed by the plaintiffs in error that, upon the facts appearing in the instant case, the Commission could not find that the accident of being struck by lightning arose out of the employment. It appears to be assumed on both sides that a correct statement of law relevant to this matter is that found in 1 Honnold on Workmen's Compensation, 428, as follows: "The employer cannot ordinarily be held liable for compensation for disability from sunstroke, freezing and lightning. These are forces of nature which he cannot foresee and prevent, and the employee is ordinarily no more subject to injury from such sources than others. But where the work and the method of doing the work exposes the employee to the forces of nature to a greater extent than he would be if not so engaged, the industry increased the danger from such forces, and the employer is liable." In the light of the statement just quoted, the contention of the plaintiffs in error may be said to be that there is no evidence that the employee, John Hrutkai, was exposed to the danger of being struck by lightning to a greater extent than he would be if not engaged in his employment. Upon this point there is evidence of the following facts: At the time of being struck by lightning, Hrutkai was working upon a steel bridge which was partly in water and partly upon a river bank. He was an oxy-acetylene welder. His employment required him to use, and he did use, a platinum lighter, a torch, a small wrench, and a pair of pliers. He had some of these tools on his person when he was struck by lightning. The tools were carried over the spot on his body on which burns were found. At the time of the accident the ground was damp, and an electrical storm was in progress. A witness for the claimants describes the bridge and the surrounding conditions, as follows: "The bridge washed down the river, * * * * * a quarter of a mile; it was a steel bridge. That is a pretty swift river; it was 50 feet from the bank to the bridge and it was about 32 feet high from the floor to the highest part of the arch; there was about 47 tons of steel in it. When it went down it seems as though it hung on an abutment and went down end first, and when it struck it doubled up in the center and twisted in a kind of a mass. There was about 20 feet in the water that we had to cross to get out to the bridge and the balance was on the other side; it lay on the island. He [Hrutkai] was at the lower end of the bridge. He was still working the last seen of him, and had a torch in his hand cutting." * * The witness Andrew Reid was experienced upon the subject of lightning protectors for street cars, and was an electrican. He testified |