In this case the undertaker testified that the widow of the deceased directed him to procure twenty limousines; that the liverymen who furnished motor vehicles for weddings and funerals had left their cards with him, that they might be called upon to serve in such business; that among the number he called were four limousines from Boltz; that the limousines were furnished together with drivers by the liverymen; that the limousines were sent to him and all he did was to give them their positions in the line of the funeral procession and direct the drivers as to where to go and whom to take in the different machines, and, after the services at the cemetery, direct them to take their loads home, without designating any direction or way to go. The undertaker testified that he was not with the machine which caused the injury, nor anyone representing him, and there is nothing to show that he did anything to bring about the negligent act. The undertaker did not pay the chauffeur nor the expenses of operation of the machine. While this latter fact alone is not sufficient upon which to determine the relationship, it is a circumstance for consideration in determining that fact.

A case much like the one here is that of Frerker v. Nicholson, 41 Col., 12. In that case an undertaking company hired a carriage and driver from the defendant, a livery-stable keeper, to carry friends at a funeral to the cemetery and back to their homes. The plaintiff, one of the occupants of the carriage, was alighting in front of her home, on the return trip, when the driver suddenly started the horses, and the plaintiff was thrown to the

ground and injured. The court held the driver was the servant of the defendant throughout the entire transaction and that the defendant was solely responsible for the negligence.

We are therefore of opinion that the facts make the relationship, prima facie, of master and servant between the driver, Herrick, and the defendant, Boltz.

The contract between the defendant and the undertaker fairly construed is an ordinary contract by the defendant to do his regular business by his servant in the common way. The undertaker who employed the services of the liveryman indicated the work to be done, and in that sense controlled the service as he would have controlled the liveryman if he had been present. He did his own business in his own way, and the orders which he received from the undertaker simply point out to him the work to be done. Driscoll v. Towle, 181 Mass., 416.

While under certain circumstances the general servant of one master may become the special servant of another, to such extent as to relieve the former from liability for the servant's negligence, under the facts of this case the general servant remained the servant of the liveryman throughout the transaction, and the servant was engaged upon the business of the liveryman.

The trial court rested its decision on the case of Deppen v. Conkling Box Co., 19 N. P., N. S., 153. That case is not an authority here. If it was correctly decided, it is clearly distinguishable.

It follows that the judgment of the trial court was erroneous and the judgment will be reversed and the cause remanded for further proceedings.

Judgment reversed, and cause remanded.

SHOHL, P. J., and CUSHING, J., concur.

Judges of the First Appellate District, sitting in place of Judges DUNLAP, WASHBURN and VICKERY, of the Eighth Appellate District.

IN RE ESTATE OF CHIPMAN.

Court of appeals — Jurisdiction on appeal — Exceptions to inventory in probate court · - Reviewed by common pleas court on appeal -Section 10640, General Code.

The proceeding provided for in Section 10640, General Code, authorizing an appeal to the court of common pleas from an adjudication by the probate court of exceptions to an inventory of an estate in the course of administration, is purely statutory and appeal therefrom cannot be taken to the court of appeals. (Decided May 10, 1920.)

APPEAL: Court of Court of Appeals for Hamilton county.

ON MOTION to dismiss appeal.

Mr. John W. Cowell, for appellant.

Messrs. Dickerson & Dickerson, for appellee.

BY THE COURT. The appellant filed exceptions to the inventory of the estate of Joseph Chipman, deceased. The exceptions being overruled, an ap

peal was taken from the judgment of the probate court, under Section 10640, General Code. The court of common pleas in the hearing on appeal overruled the exceptions. To the judgment of the court of common pleas appellant has taken a further appeal to this court, and a motion is now interposed to dismiss this appeal.

The right to appeal to the court of appeals and the jurisdiction of this court to determine causes on appeal are fixed and determined by the constitution as amended in 1912 and can be neither enlarged nor curtailed by the general assembly. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415; Wagner v. Armstrong, 93 Ohio St., 443, and State, ex rel. Fortini, v. Hoffman, Judge, 12 Ohio App., 341.

An examination of Section 10640 in its context shows the proceeding therein provided for to be purely statutory. It is not an equitable or chancery case. See Marleau v. Marleau, 95 Ohio St., 162, and West v. West, 100 Ohio St., 33. See also State, ex rel. Fortini, v. Hoffman, supra.

The motion to dismiss the appeal will be granted.

Motion to dismiss granted.

SHOHL, P. J., HAMILTON and CUSHING, JJ.,

concur.

Aluminum Castings Co. v. Patten.

[13 Ohio

THE ALUMINUM CASTINGS Co. v. PATTEN.

Workmen's compensation — Civil liability of employer-Failure to comply with lawful requirement-Section 12593, General Code, inapplicable, when — Improper ladders or scaffolding —“Lawful requirement" construed - Section 1465-76, General Code.

1. Section 12593, General Code, providing for liability of an employer for furnishing to employes improper ladders, scaffolding, etc., is not a "lawful requirement" within the meaning of Section 29 of the Workmen's Compensation Act (Section 1465-76, General Code), which imposes upon the employer liability for injuries due to his failure to comply with "lawful requirements" for the protection and safety of his employes.

2. An employer's duty to protect the lives and safety of his employes, in order to come within the meaning of the term "lawful requirement" as used in Section 1465-76, General Code, must arise by reason of either a statute, ordinance, or order of the industrial commission requiring him to adopt specific safety devices or safeguards or to do a specific act. A general duty not to be negligent is not within the meaning of the term. (Decided July 1, 1920.)

ERROR: Court of Appeals for Cuyahoga county.

Messrs. M. B. & H. H. Johnson and Mr. J. T. Scott, for plaintiff in error.

Messrs. Payer, Winch, Minshall & Karch, for defendant in error.

Mr. John G. Price, attorney general, and Mr. R. R. Zurmehly, special counsel, amici curiae.

SHOHL, P. J. Albert F. Patten was employed by The Aluminum Castings Company in September, 1918. He was engaged in millwright work. In November the millwright crew started painting the inside walls and ceiling of the company's plant