concurring.
As Justice Meyer states in his opinion for the Court, it is unnecessary to decide whether the allegations of the complaint are adequate to allege an intentional assault with intent to actually injure, removing the employer from the exclusivity provisions of the Workers’ Compensation Act, for the plaintiff has made a binding election.
In Warner v. Leder, 234 N.C. 727, 69 S.E. 2d 6 (1951) this Court rejected the plaintiff-employee’s tort action against the president of his employer on two bases:
*516First, it was admitted in the trial below that the defendant did not intentionally injure the plaintiff. And, in the second place, it is admitted that the plaintiff has applied for and received medical expenses and compensation for temporary total disability, and for permanent partial disability, in accordance with the provisions of the North Carolina Workmen's Compensation Act. The acceptance of benefits under the act forecloses the right of the employee to maintain a common law action, under the exception pointed out, against the employer “or those conducting his business.”
The general rule in this respect is given by Horowitz, “Injury and Death Under Workmen’s Compensation Laws,” page 336, as follows: “Where an employer is guilty of felonious or willful assault on an employee he cannot relegate him to the compensation act for recovery. It would be against sound reason to allow the employer deliberately to batter his helper, and then compel the worker to accept moderate workmen’s compensation benefits, either from his insurance carrier or from himself as self-insurer. The weight of authority gives the employee the choice of suing the employer at common law or accepting compensation.” Essick v. Lexington, et als., [232 N.C. 200, 60 S.E. 2d 106 (1950)]. [Emphasis added.]
Id. at 733, 34, 69 S.E. 2d at 10.
Thus, at least since 1951, this Court has been aligned with the majority of American jurisdictions in holding that a successful compensation claim bars a subsequent damage suit against the employer in the situation where the Workers’ Compensation Act is not the employee’s exclusive remedy. 2A Larson, Workmen’s Compensation Law §§ 67.31, 67.32 (1983 and 1985 supplement). This Court’s recent decision in Pleasant v. Johnson, 312 N.C. 710, 325 S.E. 2d 244 (1985) does not change the long-standing law on this point.
Because the fact that the plaintiff has recovered all benefits provided for under the Act is affirmatively established and not contested, there is no genuine issue of material fact relating to the question of whether the plaintiff has made an election. Therefore, summary judgment was appropriately entered.
*517Justice Mitchell joins in this concurring opinion.