(concurring in part and dissenting in part).
I concur in that part of the majority opinion which results in the affirmance of plaintiffs’ judgment as against the appeal of Cordova Sand & Gravel Company.
For the reasons hereafter stated, I dissent from the result reached and the reasons given for that result in respect of Bowyer & Johnson’s appeal.
With deference to my brothers, the errors of this part of their opinion are basic and fundamental. Indeed they spring from the complete ignoring of the effect of undisputed and controlling facts of record and an equally complete ignoring of hornbook law with respect to the defense of independent contractor upon *488which the opinion is made to turn. Because this is so, I shall not vie with the majority in debating propositions, most of which I believe to be irrelevant here, or in citing and discussing cases, most of which I believe to be without real bearing. In short, without piling Pelion on Ossa in stating and supporting the positions which I think the facts and the law compel me to take, I shall state them as categorically and as briefly as possible.
I begin, therefore, by saying that the district judge was correct in stating as his conclusion, “The judgment must be against both defendants according to the terms of the original contract. I think that the Cordova Sand and Gravel Company should pay it, but if they do not pay the judgment, then the other party would be bound for it.”; and that to the extent that the judgment entered failed to provide for judgment over for defendant Bowyer, it was erroneous and should be reformed.
In going contrary to this view and absolving defendant Bowyer from liability to plaintiff, the majority opinion has made the defense of independent contractor automatic and self-acting in any case where the principal contractor employs a sub-contractor. It has done this against the contrary findings and conclusions of the district judgé by making the defense operable as a matter of law on a record which not only does not support the view that his conclusions were erroneous but, on the contrary, is wholly lacking in any sufficient evidence that Cordova was an independent contractor within the true intent and meaning of the law in Mississippi and elsewhere which declares that it is not what the principal does but what he may do under the contract which is determinative. 39 C.J. pp. 1316-1317; 57 C.J.S. Master and Servant § 3(3); Cf. Mosley v. George A. Fuller Co., 5 Cir., 250 F.2d 686.
The majority opinion, denying its proper weight to the provision of the main contract that the contractor agreed to perform the work and that he would not sublet it without consent, seems to proceed entirely upon the theory that because in the agreement between Cordova and Bowyer it was stated that the contractor was subcontracting a part of the work, this alone would make Cordova an independent contractor without regard to the terms and conditions of the contract, though when the contract is looked to it would be found completely wanting in provisions which would make Cordova an independent contractor.
Among other things, after stating that Bowyer will collect the money from the state for the work, it continued: “We will deduct from this payment ten percent as our portion and participation in this work.” It further provides: “All provisions and requirements of our original contract * * * shall in effect exist between us, and this work is to be done according to plans and specifications.” Nowhere in it does Bowyer surrender the direction and control of the work. The entire reliance therefore of Bowyer must be and is based not on the provisions of the contract but upon the conclusions and opinions of Tom Johnson, the treasurer of Bowyer, that the company did not have the right to direct the work. The record standing thus, the opinion of the majority in holding contrary to the conclusion of the district judge that there was no independent contract, in my opinion may not stand.
If, however, I am wrong in this and Cordova should be regarded as an independent contractor as a matter of law, in addition and more important there is and can be, under settled law in Mississippi and generally elsewhere, no escape from the conclusion that it would, nevertheless, be liable here. This is because the subject matter of the contract between the state and Bowyer and between Bow-yer and Cordova, the clearing off of the public right of way, with the inevitable setting of fires up and down it so that injuries may be caused to the public unless precautions are taken, involved a non-delegable duty of the contractor to the public or to an individual as relates to the use of fires to burn brush, etc. cleared in *489constructing a public highway. Pickett v. Waldorf System, 241 Mass. 569, 136 N.E. 64, 23 A.L.R. 1014 and following note Precautions 1016 to 1081. The rule gathered from exhaustive annotations in 23 A.L.R. 1016 et seq., the many cases citing it, including 24 A.L.R.2d 224, was thus stated in 24 A.L.R.2d at page 288:
“Liability was imposed on the theory of the non-delegable duty of the employer with regard to the setting of a fire which would in the natural course of events produce injury unless certain precautions were taken.”1
Whether or not the misapprehension that this general rule of non-delegibility was limited to the more specific rule governing inherently dangerous instrumen-talities, is not made clear, though apparently this is their view. The majority, however, does not give to the more important, the more comprehensive rule controlling here even the lip service of a mention.
This is the testimony which compels the application of the rule here: A witness for plaintiffs testified (T.R. p. 51) that the Cordova Company made a fire every day and they set it out every day “to burn the brush up that we cut off the right-of-way.” In answer to a question (T.R. p. 52) “Charley, what precaution did Mr. Wortham and the employees for the Cordova Sand & Gravel Company take on this particular morning to keep the fire from spreading?”, he answered, “They didn’t take none.” While on pages 65-66 he testified that they didn’t even put out the fires at night. Another witness testified (T.R. 120-121) that he would see the fires up and down the road where they would be burning brush, “just brush fires from one end to the other where they were cleaning off the right-of-way.” No contrary evidence to this was offered by either defendant.
. Mississippi cases of the many that may be cited to the same effect are: Crisler v. Ott. 72 Miss. 106, 16 So. 410; Yazoo & M. V. R. Co. v. Gordon, 184 Miss. 855, 186 So. 631; Transcontinental Gas Pipeline Corp. v. Myrick, 51 So.2d 475; Weldon v. Lehmann, 226 Miss. 600, 84 So.2d 796.