(dissenting).
Texas Employer’s Insurance Association was the carrier of Workmen’s Compensation Insurance for San Angelo By-Products, Inc. and an employee of such concern having received fatal injuries while engaged in work within the scope of his employment, the Association, under its policy of insurance and the Workmen’s Compensation laws became absolutely and unconditionally obligated to pay to the legal beneficiaries of the deceased employee a sum of not less than $3,240 (Sec. 8, Art. 8306, V.A. C.S.) or in the absence of any legal beneficiary to pay to the Second Injury Fund the sum of $1,500 (Sec. 12c-2, Art. 8306, V.A.C.S. This amount was increased to $3,000 in 1957. Acts 1957, 55th Leg. p. 1186.)
Under the majority opinion the insurance carrier, appellee, is not required to pay any sum of money to anyone.
*220From this holding, I respectfully dissent.
I believe a judgment in favor of the Second Injury Fund sustainable upon three separate grounds: (1) the undisputed circumstances are sufficient to establish as a matter of law the nonexistence of surviving legal beneficiaries, (2) it was incumbent upon the carrier to establish the nonexistence of surviving legal beneficiaries, (3) the statutes involved are subject to the construction that the insurance carrier’s obligation to pay the stated sum to the Second Injury Fund accrues upon the failure of any legal beneficiary to file claim for benefits within a reasonable time from the death of the employee, the record here showing, as a matter of law, the expiration of such period.
Most of the facts are stated in the majority opinion and they will not be repeated here. Briefly they show that diligent but unsuccessful inquiry was made to ascertain the identity of the deceased employee.
To be noted also is the fact that no claim for benefits was filed with the Board for more than two years after the death of the employee, whereas the statute requires such claim to be filed within six months after such death, but for good cause this requirement may be waived by the Board. Art. 8307, Sec. 4a, V.A.C.S.
The beneficiaries named in the statute (Art. 8306, Sec. 8a, V.A.C.S.) are the husband or wife, the minor children, parents and stepmother, dependent grandparents, dependent children and dependent brothers and sisters of the deceased employee.
Human emotions and nature are such that, in my opinion, the failure for more than two years of any of those persons named in the statute to come forward and establish the identity of the deceased and their relation to him is proof that they do not exist. This proof and the intensity of the effort made to learn the identity of the deceased employee being all the evidence and being free from suspicion its acceptance by the Trial Court was required.1
In Sec. 43, p. 38, Vol. I, Texas Law of Evidence, 2d Ed., by McCormick and Ray, entitled: Test for Determining Location of Burden of Persuasion, the authors pose these questions:
“Since the court conducts no independent investigation, it must apportion between the parties the burden of persuasion. How is this done? What considerations influence the court in making this distribution ? Is there any one general test for all cases ?”
After some discussion the answer given is:
“In answer to the questions propounded above it is at once apparent that no one universal solvent has been found for all cases. This is just as well, for none is necessary. The real determination in each case should rest upon broad considerations of fairness, convenience, and policy, based upon experience in the varying situations. And this is undoubtedly the underlying basis of the decisions in most cases, although it is seldom mentioned in the opinions.”
Consideration of fairness and public policy compel the conclusion here that the insurance carrier who has voluntarily undertaken for compensation to unconditionally pay one of two sums of money upon the death of an employee killed while engaged in the scope of his employment should be charged with the duty of establishing facts to justify the Board in making an award for the lesser amount.
It has been held that the burden of persuasion as to many defensive matters is laid upon the defendant. Sec. 43, McCormick and Ray, supra. For instance the *221authors there state “In negligence actions, sound policy, convenience of proof, and fairness have each been partly responsible for the rule requiring defendant to prove contributory negligence.”
“Sound policy” requires an insurance carrier to honor its obligations. “Fairness” requires an insurance carrier to establish facts necessary to lessen its liability. “Convenience of proof” is identical to both parties in proving that there are no legal beneficiaries.
The third ground of recovery is based upon the familiar principle that when the time for performance of a required act is not specified, that performance should occur within a reasonable time.
I would render judgment against appel-lee.
. Compare the quantum of proof necessary to establish death at common law and under our statute, Art. 5541, V.A. C.S. See. 83, McCormick and Ray, Texas Law of Evidence, 2nd Ed.