(dissenting) :
I respectfully dissent from the opinion of Justice Little-john. He would reverse the judgment of the circuit court and reinstate the verdict upon the premises, (1) there was evidence that either the credit company or C & K Enterprises switched winches on Haltiwanger’s timberjack, and (2) regardless of which is the culprit, the credit company is liable to Haltiwanger; hence, the issue of liability on the counterclaim was properly submitted to the jury. But if the credit company was not liable for the substitution if done by C & K without its knowledge, then the credit company must win, for there is no basis in the evidence for concluding that it, instead of C & K, did the substituting. '
Justice Littlejohn’s theory that the credit company owed an absolute duty to keep the timberjack secure from harm comes from the same source upon which he relied last year in his dissent in Boykin v. Prioleau, 255 S. C. 437, 179 S. E. (2d) 599 (1971), namely, 53 Am. Jur. (2d) Master and Servant, Sec. 423 (1970). On its face, the cited section is concerned with obligations which one “is bound absolutely to perform. . . .’’It can have no application here where *315the only duty owed by the credit company was the exercise of ordinary care in protecting the property from harm. 15 Am. Jur. (2d), Chattel Mortgages, Sec. 123 (1964) ; 14 C. J. S. Chattel Mortgages § 186 (1939). Accord, Sec. 10.9-207 of the UCC, enacted after this case arose: “A secured party must use reasonable care in the custody and preservation of collateral in his possession.” The official comment states: “This Section applies when the secured party has possession of the collateral before default, as a pledgee, and also when he has taken possession of the collateral after default.”
The credit company had the right to take possession of the chattel and dispose of it as provided by law. It had the right to store it with a third person pending a sale. This it did with C & K, a company in the City of Columbia, which was in the business of hauling, storing, repairing and selling machinery. According to the only testimony on the point, C & K was engaged by the credit company on June 14, 1968, to take possession of the timber jack, haul it to its place of business and there store it until the date set or to be set for a public sale. When this arrangement was made, the chattel mortgage was in default, and the credit company had title to the property and right to possession. This was a classical bailment (with the credit company as bailor and C & K as bailee), to which respondeat superior principles do not apply. 8 Am. Jur. (2d), Bailments, Sec. 259 (1963). No effort was made to prove a different relationship. In this situation, proof that C & K fraudulently switched winches would not establish liability against the credit company. I agree with the circuit judge that the verdict was not supported by sufficient evidence and was based upon speculation and conjecture. I would affirm the judgment appealed from.
Bussey, J., concurs.