Opinion
November 3, 1967
Appeal by the employer and its carrier from a decision and award of disability benefits by the Workmen's Compensation Board on the ground that, as a matter of law, claimant is barred from receiving benefits by the provisions of subdivision 4 of section 205 of the Disability Benefits Law (Workmen's Compensation Law, § 205, subd. 4). Claimant was injured when he was mistakenly shot by a hunting companion. Concededly, at the time of the incident neither claimant nor his companion had a nonresident hunting license as required by the State of Pennsylvania (Pa. Game Law, § 316, subd. [a]; § 321; 34 P.S. § 1311.316, subd. [a]; § 1311.321). Subdivision 4 of section 205 of the Disability Benefits Law provides that benefits are not available "for any disability * * * resulting from any injury * * * sustained in the perpetration by the employee of an illegal act" (emphasis added). The board, one member dissenting, has concluded that "claimant's disability resulted from an injury sustained in a hunting incident rather than the result of the perpetration of an illegal act". Appellants, naturally dispute this determination and urge that as a matter of law the injuries resulted from the perpetration of an illegal act. The issue presented is one of first impression. Not only have we been unable to find any precedent dealing specifically with the problem of whether hunting without a license constitutes the perpetration of an illegal act within the meaning of subdivision 4 of section 205, but we can find no decision whatsoever even dealing with the construction to be given to subdivision 4 of section 205. Clearly, the provisions of the Disability Benefits Law require liberal construction ( Matter of Lemley v. State Mut. Life Assur. Co., 23 A.D.2d 130), but at the same time, of course, the Legislature by inserting subdivision 4 of section 205 must have intended some limitation on recovery. On balance, it is our opinion that the board could properly hold hunting without a license is not an "illegal act" within the meaning of subdivision 4 of section 205. ( Townsend v. Commercial Travelers Mut. Acc. Assn., 231 N.Y. 148, 153.) We, however, are not required in this case to determine more definitively the full extent of the limitations of subdivision 4 of section 205, and, accordingly, we limit our holding solely to the issue directly presented. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.