gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably and imminently dangerous': Reese v. Clark, 198 Pa. St. 312, 319, 47 Atl. 994.

"We understand the rule on this subject to be," said Justice O'Rear, in Illinois Cent. R. R. Co. v. Langan, 25 Ky. Law Rep. 500, 76 S. W. 32, where the danger was due to an inadequate force of men, "that if the danger or risk is such that a prudent man would have refused to do the work under the circumstances because of the danger, then the servant will act at his peril in undertaking it. But where the probability of injury is such that the minds and judgments of prudent men might well differ upon the certainty of its happening or with regard to whether the force or appliances are reasonably safe or adequate to the performance of the task, and where the master insists after objection, that the servant proceed with the work, or assures him that the force is adequate, or the machinery safe, then the servant has a right to rely on the master's presumed superior knowledge. The risk is thereby assumed by the master, and he impliedly assures the servant, who relies upon his statement, or who obeys his positive direction, that if he, the master, is in error as to the safety, he will indemnify the obedient servant against the consequences."

If a master coerces his servant into danger, the rule that a servant voluntarily engaging in a service which he knows to be dangerous does not apply: Wells & French Co. v. Gortoski, 50 Ill. App. 445. But the request of a foreman that an employé do the best he can while working alone, is not such coercion as justifies him in undertaking the work without help, when he knows that an attempt to do so is dangerous: Mayott v. Norcross (R. I.), 52 Atl. 894. Nor is a threat to discharge a servant, if he refuses to obey, such coercion: Sweeney v. Berlin etc. Elevator Co., 101 N. Y. 520, 54 Am. Rep. 722, 5 N. E. 358.

d. Assurance of Safety by Master.-An employé who fears or knows there is danger does not necessarily take the risk thereof by yielding to the assurance and command of his employer and working in the presence of the danger: Starr v. Kreuzberger, 129 Cal. 123, 79 Am. St. Rep. 92, 61 Pac. 787; McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071. Indeed, when an employé expresses a doubt or a fear that danger attends the service, and his employer or foreman assures him that his apprehensions are unfounded, and that he may proceed with safety, he has a right to rely on such assurance, especially when the master's duty and opportunity render him more capable of framing a correct judgment: Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, 36 N. E. 572; Chicago Screw Co. v. Weiss, 203 Ill. 536, 68 N. E. 54; Lasch v. Stratton, 101 Ky. 672, 42 S. W. 756. "Where a servant has knowledge of a defect and calls the attention of his master to it, and is assured by him that everything is right, and told to go on with his work, the servant will not be held to have

assumed the risk of so doing, unless the danger was so manifest that a person of ordinary prudence and caution would not have incurred it': Harte v. Fraser, 104 Ill. App. 201. One cannot, however, justify his continuance in a service which he knows and realizes is dangerous, merely on the assurance of his employer that it is safe: Rohrabacher v. Woodward, 124 Mich. 125, 82 N. W. 797.

Ordinarily, there is an implied assurance of safety when an employer orders work to be done: Illnois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876; Herdler v. Buck's Stove and Range Co., 136 Mo. 3, 37 S. W. 115.

e. Work Beyond Scope of Employment.-"Where a master commands his servant to go outside of his regular employment to do a work which is attended with special danger, and the servant, in response to specific commands of his master, goes and does the work in the way, and at the time directed, the fact that the servant knew it was dangerous does not exonerate the master from responsibility, or make the servant guilty of contributory negligence, unless the character of the danger be so patent and so extreme that no one but a foolhardy, reckless man would attempt it': English v. Chicago etc. Ry. Co., 24 Fed. 906, per Justice Brewer. See, too, Worthington v. Goforth, 124 Ala. 656, 26 South. 531; Dallemand v. Saalfeldt, 175 Ill. 310, 67 Am. St. Rep. 214, 51 N. E. 645; Clark County Cement Co. v. Wright, 16 Ind. App. 630, 45 N. E. 817; Brown v. Ann Arbor R. R. Co., 118 Mich. 205, 76 N. W. 407; Chicago etc. Ry. Co. v. McCarty,. 49 Neb. 475, 68 N. W. 633; Gulf etc. Ry. Co. v. Newman, 27 Tex. Civ. App. 77, 64 S. W. 790. This rule would seem especially applicable to a servant who is called from a place of safety and directed to do a temporary work with which he is not familiar or in which he is not skilled: See Indiana etc. Gas Co. v. Marshall, 22 Ind. App. 121, 52 N. E. 232; Branz v. Omaha etc. Ry. etc. Co. (Iowa), 94 N. W. 906; Cole v. Chicago etc. Ry. Co., 71 Wis. 114, 5 Am. St. Rep. 201, 37 N.. W. 84. The rule would, of course, be the same where the change of work is directed by a vice-principal instead of by the master himself: Orman v. Mannix, 17 Colo. 564, 31 Am. St. Rep. 340, 30 Pac. 1037.

The law governing cases of this class has been stated thus: If a master requires of a servant a service outside of the duties ordinarily incident to his employment, and subjecting him to additional danger, he does not necessarily assume the additional hazard in undertaking to perform the unusual and extra service, even though the dangers attending it are obvious. If the apparent danger is such that a person of ordinary prudence would refuse to encounter it, the employé proceeds at his peril; otherwise, he may undertake the service, using care proportionate to the apparent increased risk, and if, in so doing, he is injured by the employer's fault, he may recover therefor: Louisville etc. Ry. Co. v. Hanning, 131 Ind. 528, 31 Am. St. Rep. 443, 31 N. E. 187. Compare Leary v. Boston etc. R. R., 139 Mass. 580, 52: Am. Rep. 733, 2 N. E. 115.

SINGER SEWING-MACHINE COMPANY v. RIOS. [96 Tex. 174, 71 S. W. 275.]

MORTGAGE OF CHATTELS.-A Provision Authorizing the Mortgagee to Take Possession on default of the payment of the debt contained in a mortgage of chattels is not against public policy, but is valid, and thereunder he is authorized to take such possession, though against the wish of the mortgagor. (pp. 903, 905.)

Faulk & Patterson, for the appellant.

Brooks & Shelley, for the appellee.

176 GAINES, C. J. This case comes to us upon the following certificate:

"The court of civil appeals of the third supreme judicial district of Texas certifies that the above styled and numbered cause, on appeal from the county court of Travis county, Texas, is now pending in the court of civil appeals; and states that the appellee's cause of action is for damages alleged to have been sustained by reason of the defendant's agent entering the place of business of plaintiff, in the city of Austin, and there and then taking possession of a certain sewing-machine, which defendant had sold to the plaintiff on the installment plan. The damages alleged the sixty-five dollars, the value of the machine; that his business as a merchant tailor has been interfered with and obstructed, and that he has been deprived of the use of the machine, and that on account of being deprived of the same, the work done by him has been greatly decreased; with amount of actual damages alleged to be two hundred and fifty dollars, with also a claim for exemplary damages at two hundred dollars.

"Among other facts pleaded in the defendant's answer, there are averments to the effect that the sewing-machine was sold to the plaintiff on the installment plan; and that there was then due on the same a certain amount, which was unpaid, and that at the time of sale a mortgage was retained on the machine to secure the amount that may become due; and that there was a stipulation in the mortgage which authorized the defendant to take possession of the sewing-machine, either with or without process of law; that the plaintiff had failed and refused to pay the unpaid purchase money when due, and that the machine was taken quietly and peaceably, without the use of force, by virtue of this stipulation in the mortgage, which is as

follows: 'If said mortgagor shall fail to pay any installment as it becomes due, then all said installments unpaid shall at once become due and payable, and said mortgagee or its representatives shall have the right, and is hereby authorized and empowered, to take possession of said goods and chattels, with or without process of law, said mortgagor hereby waiving any claim or action for trespass or damage on account of said taking.'

"It is contended by the defendant that under this provision in the mortgage it took the machine, and that it was authorized to take the same, and this fact was pleaded as a defense to the plaintiff's cause of action.

"The trial court sustained a demurrer to so much of the defendant's answer as sought to justify the taking by virtue of the above provision in the mortgage; but submitted to the jury the issue as to whether or not the machine was taken from the possession of the plaintiff by and with the consent of the plaintiff; and if such was the case, to find in favor of the defendant.

177 "The defendant upon the trial of the case asked a charge, which was by the court refused, presenting to the jury the issue as pleaded, that the defendant had authority to take possession of the machine by virtue of the agreement contained in the mortgage, as above set out.

"There is evidence in the record which shows that the machine was taken from the building occupied by the plaintiff as a tailor-shop without his consent and against the express wishes of the party in whose possession it was at the time it was taken; that the machine was then in use by the plaintiff in his business as a tailor. And there is also evidence which tends to show that the defendant in taking the machine used no force or violence, and no breach of the peace was committed at that time. It also appears as a fact that at the time the machine was taken there was a balance due the defendant as a part of the purchase price of the machine. It is also pleaded, and there is evidence to sustain the averments, that the machine was taken by the defendant for the purpose of enforcing the provision of its mortgage and lien on the machine.

"Verdict and judgment in the trial court were in favor of the plaintiff on all of the items of damages claimed, with a credit in favor of the defendant for the balance due upon the machine, and for the balance remaining, judgment was rendered in plaintiff's favor.

"Under the above statement, the court of civil appeals for the third supreme judicial district of Texas certifies to the supreme court of Texas the following question:

"Although the taking of the machine at the time was without the consent of the plaintiff, did the stipulation contained in the mortgage, as above quoted, authorize the defendant to enter the place of business of the plaintiff and take actual possession of the machine, without then and there first obtaining the permission and consent of the plaintiff? In other words, did the consent given in the provision of the mortgage quoted authorize the taking, where it is, as here, shown by the facts that no force or violence or breach of the peace was committed in taking the machine? And if such taking was justifiable under the terms of the mortgage as quoted, would such fact be a defense, either in whole or in part, to the plaintiff's cause of action?"

We are of the opinion that the question should be answered in the affirmative. Clearly, unless the stipulation in the mortgage which purported to give the appellant the right to take possession of the sewing machine upon default of payment be held of no effect, its agent committed no wrong by a peaceable seizure of the property for the purpose of paying the debt. The stipulation is valid, unless it is contrary to public policy. According to the well-known dictum of an English judge, public policy "is a very unruly horse, and when you once get astride it, you never know where it will carry you": Richardson v. Mellish, 2 Bing. 229. This striking illustration admonishes us that the terms "public policy" are vague in meaning and dangerous of application, 178 and that unless we exercise due discrimination, we are likely to fall into error when we come to apply them to the construction of a contract with a view to determine the validity of its provisions. Freedom of contract is the rule, subject to the exception, that a party cannot bind himself to do that which is by law prohibited, or declared to be illegal, or which is manifestly detrimental to public morals or the public good. The question then arises, What consequence injurious to the public is a stipulation of the character of that under consideration calculated to produce? To this it may be vaguely answered, that it tends to a breach of the peace. But the reply is, so do many other contracts the validity of which are never called in question. Certainly no breach of the peace is likely to occur provided the mortgagor in such case does what he has contracted to do and what it is his duty to do. namely, in case of default to surrender the property upon de