dissenting. I think that the award by a majority of the board and the, ruling of a majority of this court are based on false premises and are contrary to rulings by this court and the Supreme Court which are controlling.
The majorities of the board and of this court overlook the fact that the very tenuous presumption that an employee’s accidental death is prima facie presumed to have arisen out of his employment from the naked fact that he is found dead at a place where he might be expected to be vanishes when evidence is introduced into the case which would defeat the presumption. The burden of proof, to be distinguished from the burden of proceeding with evidence, is on the claimant to- prove that the death occurred in the course of and out of the employment. When sufficient evidence is introduced to nullify the presumption above mentioned the claimant must go forward with the original burden and produce other evidence to show that the accident is compensable if the employer has not done so and *796the necessary facts have not come from cross-examination or elsewhere. In this case the facts surrounding the death dissolved the presumption. Facts which make the question whether the death arose out of the employment problematical and conjectural are sufficient to eradicate the presumption. Francis v. Liberty Mutual Ins. Co., 95 Ga. App. 225 (97 S. E. 2d 553); Ladson Motor Co. v. Croft, 212 Ga. 275 (92 S. E. 2d 103). This is made crystal clear by the statement in the Croft case: “Even if it should be assumed in this case that the deceased was at a place where he reasonably might have been in the performance of his duties, and while doing something incidental to such performance, there is no evidence that his employment was a contributing proximate cause of his death. Whether his death resulted from some matter incidental to his employment, or for reasons personal, or by reason of revenge, is wholly a matter of speculation and conjecture.” If the burden of proof had been on the employer in the Croft case to- show that the death was due to revenge or reasons personal to the employee, etc., the ruling would have been different. The majority opinion in this case admits expressly that the evidence is inconclusive as to whether the employee was engaged in his employment or anything incidental to his employment at the time of his death. That admission alone destroys the validity of the conclusion reached. The majority is correct in that admission because there is not competent evidence in the case to authorize a finding that the employee was engaged in his employment or anything incidental thereto at the time of his death which the evidence showed was by felonious assault by a third person. The majority has substituted, or retained, the vanished presumption to supply the basis for finding that the death arose out of employment, which is unsound as shown by the cases above cited. The majority treats the matter of the death’s being due to the acts of a third party by reason of something personal to the employee as being an exception and an affirmative defense by the employer just as the defense of wilful misconduct by the employee. This hypothesis by the majority is also wrong, as shown by the two cases above cited. There was no evidence in the case sufficient to show that the employee was en*797gaged in his employment or anything incident thereto at'the time he was killed. Since the evidence is inconclusive as to whether the death was compensable or whether it was caused by a third person for reasons personal to the employee.the claimant did not make out her case, and the board erred in holding the death compensable.