concurring generally and specially.
I concur in the judgment of reversal and in the four-judge opinion generally, on the theory that if the questions dealt with by the four-judge opinion are reached, the case should be reversed because jury questions are involved.
I also concur specially because, while I think the four-judge opinion is correct if the question covered is reached, I think all of my fellow judges have overlooked an exceedingly vital question of law which to my mind is so vital that it should be confronted and decided. Can a prime contractor who is employed as an independent contractor to perform work for an owner or employer where the person employing the independent contractor does not contemplate that the independent contractor he employs will employ still another independent contractor without his knowledge or consent, avoid responsibility for the obligations and liabilities to the employer or owner and others under the original contract by employing a sub-independent contractor without the owner’s consent?
On motion for a summary judgment the burden of proof was upon the appellee Paper Company. To carry this burden, it would have to show two things: first, that the owner of the pulpwood (a Mrs. Gailey), who gave the Paper Company the right to cut it, consented for the Paper Company to delegate its duties and obligations to Mrs. Gailey under the contract of sale of her pulpwood rights, to an independent contractor, who would owe Mrs. Gailey only his obligations as an independent contractor. This burden was on the Paper Company because the law places it there and because the Paper Company knew what the contract was and presumably had the original or duplicate copy of the contract. This burden was not carried and the question of a delegation to an independent contractor, which would be the second thing the movant would have to show, cannot come into play because, unless consent of Mrs. Gailey is shown, there could be no independent contractor as to anybody.
*884Code § 20-1101 provides as follows: “Performance, to be effectual, must be by the party bound to perform, or his agent (where personal skill is not required), or someone substituted, by consent, in his place.” (Emphasis supplied.) This statute was not repealed by the enactment of the Uniform Commercial Code, but rather was reinforced by at least one portion thereof, namely Code Ann. § 109A-2—210 (1) (Ga. L. 1962, pp. 156, 181), which provides as follows: “A party may perform his duty through a delegate unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the contract. No delegation of performance relieves the party delegating of any duty to perform or any liability for breach.” (Emphasis supplied.) It follows from the above that the Paper Company was not relieved, by its delegation of the performance of its contract without the landowner’s consent, of its duty to perform the contract in the exercise of ordinary care to prevent injury to the property and its consequential liability to the adjoining landowner for damages for the breach of said duty on the part of the Paper Company’s delegate, which is presumed to be unauthorized in the absence of the production of evidence to the contrary by the Paper Company.
Even if the necessary consent was shown, however, and it be assumed that defendant Morris is an independent contractor, it does not necessarily follow that his employer, the contracting Paper Company, would escape liability under the provisions of Code § 105-501, which states the general rule. Code § 105-502 provides: “The employer is liable for the negligence of the contractor ... 4. [i]f the wrongful act is the violation of a duty imposed by statute.” Such a duty is imposed by statute in reference to “firing the woods.” Code Ann. § 26-3601. Persons who “permit fire to get. into the woods . . . through neglect” are guilty of a misdemeanor. Code Ann. § 26-3602. Under these circumstances, the contractee-employer has a nondelegable duty to third persons to the contract, on the theory that its responsibility is so important to the community that the employer should not be permitted to transfer it to another. As was pointed out in Rodgers v. Styles, 100 Ga. App. 124, *885132 (110 SE2d 582), “the defendants here had a duty, irrespective of any contractual obligation, not to negligently set fire to and burn property of the plaintiffs.” In this regard see, generally, Prosser, Handbook of the Law of Torts, Chap. 13, § 70, p. 480 et seq.; Ibid., Chap. 14, § 76, p. 517; 57 CJS 352 et seq., Master and Servant, §§ 580-610.
Code § 105-103 provides: “When the law requires one to do an act for the benefit of another, or to forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the injured party may recover.” Under this section, the plaintiff might recover damages, assuming that the other requirements for recovery hereinabove stated were met, for the defendant Paper Company’s failure to perform its nondelegable statutory duty of forbearing the firing of the woods. This question has not been ruled on. It arose in Guthrie v. Robbins Home Improvement Co., 94 Ga. App. 578 (95 SE2d 737). The Supreme Court reversed this court, 213 Ga. 138. However the Supreme Court did not reverse the principle of law declared by this court but construed the evidence as showing that the owner knew that the prime contractor had employed a subcontractor with the owner’s consent simply because the owner talked to the subcontractor. This court did not think the evidence showed the owner’s consent because the evidence did not show that the owner knew that at the time he talked to the subcontractor he was a subcontractor of the prime contractor rather than a mere servant. This court cited Wood v. Frank Graham Co., 91 Ga. App. 621 (86 SE2d 691) for the principle held to apply in that case. The facts in that case are different, but the principle is clear.