SIMS, Justice. Walter Cox was an employee of the High Splint Coal Company (hereinafter referred to as the Company) which was not operating under the Workmen's Compensation Act. He recovered a judgment of $4500 against the Company for personal injuries received in a mining accident. It is asking a reversal of the judgment because: 1. Plaintiff's injuries resulted solely from his own negligence; 2. a compromise settlement was entered into between the parties which released the Company from all liability; 3. the court erred in not transferring the cause to equity for trial of the issue of reformation or cancellation of the compromise agreement for alleged misrepresentation and fraud; 4. plaintiff is required to return the sum received in settlement in order to maintain his action; 5. the instructions were erroneous.
The fraud relied upon here was in the execution of the release -- that it was not read to plaintiff -- therefore on the authority of Hazelwood v. Woodward, 227 Ky. 447, 126 S.W.2d 857, 862, we hold that this issue was properly triable at law, and that the court did not err in overruling the Company's motion to transfer to equity for a trial thereof. As we have reached the conclusion that the parties entered into a binding compromise settlement it will be unnecessary to consider the other grounds relied upon for reversal.
Cox was a coupler on a mine train and suffered an accident on March 2, 1943, while switching empty cars when they were struck by another mine train. His left leg was broken, a muscle in his right thigh was ruptured and there is evidence that the neck of the femur was fractured. He was immediately taken to a hospital where he received the customary treatment for such injuries, but the bones in his leg did not form a union and it was necessary to hold them together with a plate.
After leaving the hospital and while still wearing a cast, Cox went to the office of J. E. Taylor, manager of the Company, and requested financial assistance. Cox testified that Taylor replied he could do nothing for him, while Taylor's testimony was to the effect that he told Cox he would have to take the matter up with the Company's officials. After obtaining authority to make a settlement, Taylor directed Andy Hagey, a deputy sheriff employed by the Company, to go in an automobile for Cox and bring him to Taylor's office. Cox cannot read or write but can sign his name. Mrs. Cox was educated, therefore her husband took her along to the Company's office for the reason, as he expressed it, 'There might be something up Jack's (Taylor') sleeve.'
Taylor testified that when Cox and his wife arrived at his office he informed Cox there was no liability on the Company but that it would pay $500 to settle his claim; that Cox conferred with his wife and then countered with $600. A full settlement of Cox's claim for injuries was finally reached by the Company paying $500 in cash and canceling a debt of $82.32 Cox owed it for rent, light and fuel. Thereupon, Taylor directed E. H. Smith, an office man, to make up a release for Cox to sign and to give Cox a check for $500. The evidence for the Company is that this was done and that Smith read the release to Cox who signed same in the presence of Smith and Mrs. Hazel R. Atchison, a secretary in Smith's office, who then and there affixed their signatures on the instrument as witnesses. Mrs. Cox was then handed a check for $500 in her husband's presence.
The release is a printed form with blanks filled in on a typewriter, which typewritten parts we show in italics to distinguish them from the printed matter. The release and check read:
'Whereas, I, Walter Cox, of the County of Harlan and State of Kentucky, was injured and damaged on or about the 2nd day of March 1943 while employed at a coal mine owned and operated by the High Splint Coal Co. under circumstances which, I claim, render said Company liable for damages; and
'Whereas, such liability is denied by said Company, and
'Whereas, both parties desire to compromise, adjust and settle the entire matter:
'Now, therefore, in consideration of the sum of Five Hundred Eightly Three dollars & 32/100 (583.32) to me this day paid by the High Splint Coal Company the receipt of which is hereby acknowledged, I do hereby compromise said claim, and do hereby release and forever discharge the said High Splint Coal Company, its successors or assigns, and all companies, whose mines are leased to and operated by it, their agents and employees from any and all liability for all claims, for all injuries and damages to me and my person, now or heretofore existing, and including any that may hereafter develop, as well as those now apparent; and also do hereby release and discharge them from all suits, actions, causes of action and claims for injuries and damages which I have, arising out of the injury and damages above referred to and any and all claims and liabilities for any and all injuries and damages now existing or may hereafter develop on account of any injury or damages heretofore sustained by me. and I do hereby acknowledge full satisfaction of all such liability and causes of action.
'It is distinctly understood and agreed by me that the sole and only consideration inducing me to the execution of this release is the payment to me of the sum of money mentioned above, and the compromise and settlement of all said matters.
'I further represent and covenant that, at the time of receiving said payment and signing this release, I am of lawful age, (over 21) and legally competent to execute it, and that before signing and delivering it I have fully informed myself of its contents and execute it with full knowledge thereof and of my own free will and accord.
'Given under my hand at High Splint, Kentucky this the 28th, day ...