(concurring):
I concur in the result reached by the majority. I concur also in the legal rationale. I feel compelled, however, to state my position somewhat more expansively.
From the allegations of the complaints in the two cases, it seems without question that recovery is being sought on behalf of that which would fall within the statutory definition of a compensable occupational disease as the term is used under the Delaware Workmen’s Compensation Law. At 19 Del.C. § 2301(4) a compensable occupational disease is defined to include “all occupational diseases arising out of and in the course of employment only when the exposure stated in connection therewith has occurred during employment.” In these cases plaintiffs allege an exposure to asbestos during the course of their employment and various diseased conditions resulting directly therefrom.
By § 2304 of the Workmen’s Compensation Law it is provided that every employer shall be bound to pay, and every employee bound to accept, compensation as determined under the Law for personal injury arising out of and in the course of employment. By § 2301(11) the term “personal injury” is defined to specifically include “compensable occupational diseases.” Thus, the approach of the plaintiffs in each case has been, of necessity, to attempt to establish some basis to justify the removal of their occupational disease claims from the limiting classification of “compensable occupational diseases” contained within the Workmen’s Compensation Law.
At a given point in the past, this approach might well have been persuasive. Under present conditions, however, it is not. As the majority opinion points out in tracing the legislative history relating to the coverage of compensable occupational diseases, the status of the law at one time construed a personal injury under the Delaware Workmen’s Compensation Law to mean “only violence to the physical structure of the body and such disease or infection as naturally results directly therefrom when reasonably treated .. .. ” Revised Code of Delaware 1935, 6114 § 44.
By amendment in 1937, 6114 § 44 was expanded so as to cause the term “personal injury” to include certain compensable occupational diseases specifically listed in the amendatory act. Twelve separate occupational diseases were thereafter set forth, and the amendment specifically provided that compensable occupational diseases for the purposes of the Workmen’s Compensation Law did not include any other than the twelve listed. 41 Del.L. Ch. 241. The necessary implication of this would seem to be that any other occupational disease incurred during the course of employment, whether through the negligence of the employer, by the knowing and intentional conduct of the employer, or otherwise, was not then covered by the Workmen’s Compensation Law, thus leaving the stricken employee free to seek recovery against the employer under common law principles — just as plaintiffs seek to do now.
Thereafter, in 1949, the General Assembly again amended 6114, § 44 by specifically deleting the paragraph of the statute which listed the designated occupational diseases and which also provided that no other occupational diseases were compensa-ble under the Workmen’s Compensation Law. In lieu thereof was inserted a new paragraph which provided that “[cjompensable occupational diseases shall include all occupational diseases arising out of and in the course of employment . ... ” 47 Del.L. Ch. 270. This appears to be the same statutory provision carried over presently in 19 Del.C. § 2301(4).
Thus, an occupational disease arising out of or during the course of employment is compensable under the Workmen’s Compensation Law, and under that Law the employer is bound to pay, and the employee is bound to accept, compensation as determined under the applicable provisions of the Law.
Plaintiffs’ argument to get around these statutes, as I see it, appears to be based on the premise that the manner in which the occupational disease was caused to be incurred during the course of employment— *233as opposed to the fact that it was incurred during the course of employment — provides the necessary distinction. Thus their contentions that gross negligence or a knowledgeable and intentional course of conduct by an employer resulting in an occupational disease to an employee gives rise to a separate cause of action at common law notwithstanding the language of the workmen’s compensation statutes.
But the fact remains that regardless of the circumstances leading up to it, an occupational disease arising out of and in the course of employment is, by statute, com-pensable under the Workmen’s Compensation Law, and the same statutes make such compensation the exclusive remedy, except as otherwise expressly provided in the Workmen’s Compensation Law itself. 19 Del.C. § 2304. What the plaintiffs are arguing for, then, reduces itself to a claimed right to elect their remedies in situations wherein they feel that the facts of the situation warrant it, i.e., to forego compensation to which they would be otherwise entitled under the statutes in favor of suing the employer at law for damages for the same compensable occupational disease because of what they feel to have been grossly negligent or intentionally tortious conduct on the part of the employer in causing the condition which gave rise to the occupational disease. But if permitted, this would constitute an exception to the right to recover for a compensable occupational disease not provided by the Workmen’s Compensation Law itself. As such, it would violate the legislative expression that employment related occupational diseases are compensable exclusively under the Workmen’s Compensation Law unless otherwise provided by the General Assembly.
It may be that under certain circumstances such a right of election is needed. Plaintiffs offer policy arguments in support of their position which have a certain amount of appeal. However, in view of the clear and all-encompassing scope of the statutes concerning occupational diseases, when measured against their legislative history, I agree with the majority that it is a matter properly to be presented to the General Assembly rather than to the Courts.
For this reason I concur in affirming the decision of the Trial Court in each case.
APPENDIX
The legislative history of and statutory provisions related to 19 Del.C. § 2304 include the following:
(1) 29 Del.Laws, ch. 233 (1917) provides in pertinent part:
Every employer and employee shall be conclusively presumed to have elected to be bound by the compensatory provisions of this Article and to have accepted the provisions of this Article, respectively, to pay and to accept compensation for personal injury or death by accident arising out of and in the course of the employment, regardless of the question of negligence, and to the exclusion of all other rights and remedies
(2) 41 Del.Laws, ch. 241 (1937) provides in relevant part:
Terms Construed: — The term “injury” and “personal injury” as used in this Chapter shall be construed to mean violence to the physical structure of the body, such disease or infection as naturally results directly therefrom when reasonably treated and compensable occupational diseases, as are hereinafter defined, arising out of and in the course of the employment. When death is mentioned as a cause for compensation under this Chapter, it shall mean death resulting from such violence, its resultant effect when reasonably treated as aforesaid and occurring within two hundred and eighty-five weeks after the accident, and com-pensable occupational diseases, as are hereinafter defined, arising out of and in the course of the employment.
When applicable in this Chapter to compensable occupational diseases the following words and phrases shall be construed to have the following meanings:
Compensable occupational diseases shall not include any other than those scheduled below and shall include those so scheduled only when the exposure stated *234in connection therewith has occurred during the employment, and the disability has commenced within five months after the termination of such exposure:
Occupational Diseases:
Anthrax;
Lead Poisoning;
Mercury Poisoning;
Arsenic Poisoning;
Phosphorus Poisoning;
Benzene, and its homologues, and all
derivatives thereof;
Wood Alcohol Poisoning;
Chrome Poisoning;
Caisson Disease;
Mesothorium or radium poisoning;
Carbon Disulphide;
Hydrogen Sulphide.
The compensation payable for death or disability total in character and permanent in quality resulting from an occupational disease shall be the same in amount and duration and shall be payable in the same manner and to the same persons as would have been entitled thereto had the death or disability been caused by an accident arising out of and in the course of the employment.
In determining the duration of temporary total and/or temporary partial and/or permanent partial disability, and the duration of such payments for the disabilities due to occupational diseases, the same rules and regulations as are now applicable to accident or injury occurring under the act to which this act is an amendment or supplement, shall apply.
See also 43 Del.Laws, ch. 269 (1941) (adding dermatitis, sillicosis, poison ivy and oak poison to the schedule of compensable occupational diseases).
(3)47 DeLLaws, ch. 270 (1949) provides in pertinent part:
Compensable occupational diseases shall include all occupational diseases arising out of and in the course of employment only when the exposure stated in connection therewith has occurred during the employment and the disability has commenced within five months after the termination of such exposure.
(4) 19 DelC. § 2301(4) & (11) provide:
(4) “Compensable occupational diseases” includes all occupational diseases arising out of and in the course of employment only when the exposure stated in connection therewith has occurred during employment.
(11) “Injury” and “personal injury” mean violence to the physical structure of the body, such disease or infection as naturally results directly therefrom when reasonably treated and compensable occupational diseases and compensable ionizing radiation injuries arising out of and in the course of employment.
(5) 19 Del.C. § 2328 provides:
The compensation payable for death or disability total in character and permanent in quality resulting from an occupational disease shall be the same in amount and duration and shall be payable in the same manner and to the same persons as would have been entitled thereto had the death or disability been caused by an accident arising out of and in the course of the employment.
In determining the duration of temporary total and/or temporary partial and/or permanent partial disability, and the duration of such payments for the disabilities due to occupational diseases, the same rules and regulations as are applicable to accidents or injuries shall apply.