author: WALKER, Justice,

text:
    L. Alfred NORVILLE, Jr. v. MISSISSIPPI STATE MEDICAL ASSOCIATION.
    No. 50371.
    Supreme Court of Mississippi.
    July 26, 1978.
    Rehearing Denied Dec. 13, 1978.
    Abe A. Rotwein, Jackson, for appellant.
    Wise, Carter, Child, Steen & Caraway, James K. Child, Jr., J. Leray McNamara, Jackson, for appellee.
    Before SMITH, WALKER and COFER, JJ.
   WALKER, Justice,

for the Court:

This is a suit to enjoin a chiropractor from the practice of medicine without a license. Suit was brought in the Chancery Court of the First Judicial District of Hinds County, Mississippi by the Mississippi State Medical Association against L. Alfred Nor-ville, Jr. The court granted partial relief and issued a permanent injunction prohibiting Norville from prescribing, recommending or suggesting vitamins and food supplements for use by his patients and prohibiting the use of microwave diathermy machines, ultrasonic devices, and electric muscle stimulators.

The case presents three issues:

(1) Whether the use of microwave diathermy machines, ultrasonic devices and electric muscle stimulators by a chiropractor constitutes the unlicensed practice of medicine?

(2) Whether prescribing, recommending or suggesting use of vitamins by a chiropractor constitutes the unlicensed practice of medicine?

(3) Was the petitioner, Mississippi State Medical Association, required to prove irreparable harm and lack of an adequate remedy at law before an injunction could issue?

The Mississippi State Medical Association, at the 1975 annual meeting of its House of Delegates, approved a resolution to initiate legal action against chiropractors who violate the Chiropractic Licensing Act resulting in unlicensed practice of medicine. Subsequently the executive secretary of the Mississippi State Medical Association selected Norville as a defendant and employed counsel to file suit. The suit was for in-junctive relief. Defendant generally demurred to the bill on the grounds that there was no equity on the face of the bill; that it did not state a cause of action; that there existed a proper remedy at law, and that complainant was not a proper party to bring suit and therefore lacked standing. The demurrer was overruled and the cause set for trial.

At trial, Norville admitted that he prescribed vitamins for his patients and kept a supply for sale in his office. He further stated that his use of vitamins was for the purpose of relieving ailments or disease and that he prescribed vitamins in ninety to ninety-five percent of his cases. Similarly, Norville admitted the use of ultrasound, microwave, and electric muscle stimulators in ninety to ninety-five percent of his cases. He testified that the modalities were used to relieve an ailment or treat a disease; however, at another joint he had testified they were used to facilitate spinal adjustments.

Photographs of the vitamins involved were introduced into evidence. There were some eighty-one different types of vitamins and food supplements involved, but all were of the type which can be purchased in stores without prescription. The modalities prohibited were ultrasound, microwave diathermy, and electric muscle stimulator. Dr. Wharton, an orthopedic surgeon and chief of the spinal injury service at Methodist Rehabilitation Center testified that microwave diathermy is a form of treatment which concerns the use of radio waves in the microwave spectrum. These microwaves have the capability of developing heat or translating the energy of radio waves deep within the body or at least deeper than the superficial layers of skin. The purpose of microwave diathermy according to Dr. Wharton is to produce heat deep within the body and by doing so to increase blood circulation in that particular area. He also testified that if overheating occurs, tissue necrosis (death of the tissue) can occur. He further testified that in his opinion it was possible to cause death with the use of diathermy.

Ultrasound, according to Dr. Wharton, is energy in the form of a sound frequency. The ultrasound equipment can cause changes in the temperature of tissue and the purpose is to alter temperature selectively. As with microwave diathermy, it also produces some degree of increased circulation. According to Dr. Wharton, ultrasound penetrates more deeply than microwave diathermy. Among other dangers of the use of ultrasound, Dr. Wharton pointed out that if used in an area of an underlying tumor, the vibratory form of energy may spread malignancies through the bloodstream. A similar effect may occur if used over an area of infection.

Electrical muscle stimulators are used to transmit a low voltage current through the skin, generally to trigger points in a muscle near the junction of nerves and muscle tissue thereby causing the muscle to contract. Dr. Wharton testified that he knew of no circumstances where a muscle stimulator would be used with regard to the spine or spinal column.

Several physicians testified that ultrasound or microwave diathermy were used only in fairly rare circumstances and only after other forms of treatment had proven ineffective. Photographs of these three modalities were introduced into evidence. All three machines bore plates warning that the machines were sold only for use by or under the direction of a qualified physician or by a person licensed by state law to use such machines.

DIATHERMY
Federal law restricts the sale of this device for use by or on the order of a physician or any other practitioner licensed by the law of the state in which he practices to use or order the use of this device.
The manufacture, use and sale of this equipment is licensed by Raytheon Company
ULTRASOUND
Federal law restricts this device to sale by or on the order of a qualified physician or other qualified practitioner licensed by the law of the state in which he practices to use or order the use of this device. Licensed under U.S. patents of A.T.&T. Co. and Western Electric Co., Inc. for therapeutic generators. Other patents pending. Federal Communications Commission type approved.
ELECTRIC MUSCLE STIMULATOR
WARNING: This device is sold only for use by or under the direction of a qualified physician. The observance of safe and established medical practices is essential to its proper use. Otherwise there are possibilities of injury to patients or operators.
MAJESTIC INSTRUMENTS

I.

(1) Does use of the modalities microwave diathermy, electrical muscle stimula-tors and ultrasound equipment constitute the practice of medicine?

(2) If so, is use of such equipment permitted by the Chiropractic Licensing Act?

The practice of medicine is defined in Mississippi Code Annotated section 73-25— 33 (1972) as:

The practice of medicine shall mean to suggest, recommend, prescribe, or direct for the use of any person, any drug, medicine, appliance, or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound or fracture or other bodily injury or deformity, or the practice of obstetrics or midwifery, after having received, or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, profit or compensation; provided, that nothing in this section shall apply to females engaged solely in the practice of midwifery.

Defendant Norville admitted that he prescribed or directed the use of these modalities for the cure and relief or palliation of ailment or disease of the body with the intent to receive compensation therefor. Thus, there is no question but that such use of the machines constituted the practice of medicine.

The question remains, however, whether such use is protected or allowed under the Chiropractic Licensing Statute, Mississippi Code Annotated section 73-6-1 to 73-6-31 (Supp.1977). Section 73-6-1 defines the practice of chiropractic as:

The practice of chiropractic involves the analysis of any interference with normal nerve transmission and expression, and the procedure preparatory to and complementary to the correction thereof, by an adjustment of the articulations of the vertebral column and its immediate articulations for the restoration and maintenance of health without the use of drugs or surgery.

If the use of such instrumentalities is allowed by the statute, then they must come under the phrase “procedure preparatory to and complementary to adjustment of the articulations of the vertebral column.” The appellant at one point testified he used diathermy and ultrasound to relax patients prior to making adjustments and electrical muscle stimulators to “free infringed nerves” prior to making adjustments. While there was contradictory testimony on the purpose of use of modalities, nevertheless assuming the above purposes, the question still remains whether the legislature intended such use to be covered. The chancellor construed the phrase as not including use of such modalities. We agree.

Prior to the passage of the Chiropractic Licensing Act of 1973, this Court had upheld the conviction of a chiropractor for the illegal practice of medicine who had attempted to remove tonsils by inserting a needle and applying electric current. Joyner v. State, 181 Miss. 245, 179 So. 573 (1938). In affirming the decision, the Court did not dwell on the use of the needle as such but rather discussed the use of elec-trotherapy in the general sense. The Court stated:

But the treatment of disease by the use of surgical instruments and other appliances, as distinguished from treatment by hand . . . and treatment by means of electricity, known as electrotherapy, are methods commonly adopted by physicians and surgeons, as taught in their institutions, established by their highest authorities in the field of surgical and medical science, and, by general acceptation, regarded as pertaining peculiarly to those professions.
Electrotherapy is defined in medical jurisprudence as the use of different forms of electric machines for therapeutic purposes, and before an electrotherapist can follow his profession he must obtain, at least in some states, a license authorizing him to practice in that particular field. This practice has not been recognized in our state as a distinct science, separate and apart from the field of medicine or surgery; and, since the use of electrical appliances for the treatment of disease is ordinarily regarded as pertaining to these particular fields, it is not lawful to engage in the practice of these methods without being licensed as a physician and surgeon. (Emphasis added). 181 Miss. at 252, 179 So. at 576.

The Court went on to hold that “Appellant was authorized to practice chiropractics under his license (privilege license) issued to him by this State, but not to engage in the use of any methods pertaining to the practice of medicine and surgery.” In so holding, the Court cited State Board of Medical Examiners v. De Baun, 7 N.J.Misc. 1040, 147 A. 744 (1929). There, the defendant chiropractor explained his use of the electrical apparatus as “a galvanic current producing heat for relaxation” which is the argument of Norville in the case at bar. The Court in De Baun rejected this contention stating that:

Electricity is a dangerous instrumentality with the ever present capacity to do serious bodily harm unless restrained within proper limitations. It is essential that its use as applied to the human body should be under the direction of authorized persons. Its use in the instant case was a part of the art of healing. The specific use above referred to in no wise involved the function of hand manipulation. We are unable to conceive of any hypothesis in the proofs in the case upon which the use of electricity in the manner stated is a part of the practice of chiropractic. . . . (147 A. at 744-45).

Thus, it is clear that absent an intent on the part of the legislature to broaden the preexisting scope of chiropractic practice, the contention of appellant must fail. No such intent expressly appears in the licensing statute.

Moreover, we are influenced by the consideration that where in the Chiropractic Act, practitioners are allowed to use equipment capable of causing bodily harm, e. g., x-ray machines, such use was allowed only with stringent educational requirements, e. g., “. . . forty (40) clock hours of instruction in the operation of X-ray machinery and not less than forty (40) clock hours of instructions in X-ray interpretation and diagnosis.” Furthermore, provision is made for examination concerning knowledge of and use of x-ray machines. Mississippi Code Annotated section 73-6-13 (Supp. 1977). In contrast, no provision was expressly made for use of diathermy, ultrasound or electrical muscle stimulators, nor is there any educational requirement for classes in such machines. The testimony at trial indicated such machines were capable of causing bodily harm. It seems likely that if the legislature intended that chiropractors be allowed to employ these hazardous modalities in the treatment of their patients, it would have provided for substantially the same safeguards that underlie use of x-ray machines.

All of the witnesses agreed that the disputed modalities can be dangerous if improperly used or if used when contraindicated. Doctors George Wharton and George Purvis both testified that it is necessary to rule out infections and malignancies in the areas to be treated before using diathermy or ultrasound, as treatment with these modalities might cause the malignancy or infection to spread. Both testified that if a surface examination indicates the possibility of a malignancy or infection, it may be necessary to obtain a tissue sample or to use a needle to draw out any fluid that might be present in the potentially infected area and have that analyzed by a laboratory. By appellant’s admission, the taking of tissue samples or fluid is outside the scope of his practice as described by the State Board of Chiropractic Examiners and we are not persuaded that the presence of malignancy or infection can be ruled out by the other diagnostic procedures employed by appellant.

Given the prior ruling in Joyner that electrotherapy constituted the practice of medicine and was not a part of chiropractic, coupled with the failure of the legislature to expressly allow use of and set up educational requirements for use of these modalities and since the testimony showed them to be capable of causing harm if improperly used, we must conclude the use of such modalities is prohibited to chiropractors.

II.

(1) Does prescribing, recommending or suggesting the use of vitamins for patients constitute the unlicensed practice of medicine?

(2) If so, is such protected under the Chiropractic Licensing Act?

Appellant admitted that he recommended or prescribed vitamins and food supplements for use by his patients to cure their ailments. He maintained a supply in his office and sold them directly to the patients for whom he prescribed. As pointed out above, the practice of medicine, by statute, “shall mean to suggest, recommend, prescribe or direct for the use of any person, any drug, medicine, appliance or other agency . . . for the cure, relief, or palliation of any ailment or disease . after having received . . . compensation . . . . Miss.Code Ann. § 73-25-33 (1972). If then, “vitamins” are included within the meaning of “drug, medicine, appliance or other agency, such practice constitutes the unlicensed practice of medicine.”

In Harris v. State, 229 Miss. 755, 92 So.2d 217 (1957), where suit was brought against a chiropractor for unlicensed practice of medicine, this Court said:

The question is further presented as to whether the appellant’s treatment of John Minor by the injection of vitamins under all of the facts and circumstances of the case brought him within the statutory definition of practicing medicine. In other words, whether in so treating John Minor by injecting vitamins, the appellant was for compensation suggesting, recommending, prescribing, or directing for the use of the patient a drug, medicine, appliance, or other agency for the cure, relief or palliation of any ailment or disease of the body of the patient. In determining this question, we adopt that interpretation of the statute which is most favorable to the appellant and apply the rule of ejusdem generis to the words “or other agency,” and construe the words to mean other agency akin to or of like character with a drug or medicine. 41 Am.Jur., Physicians and Surgeons, Sec. 27, p. 157.
Assuming as true the testimony of the appellant that he prescribed and administered vitamins in order to correct a vitamin deficiency, it necessarily follows that he prescribed and administered vitamins as an agency akin to medicine to correct a disorder or ailment in the human body which interfered with normal animal growth and was likely to produce disease. (229 Miss. at 766, 92 So.2d at 222).

Thus, the present prescription of vitamins to cure an ailment constitutes the unlicensed practice of medicine unless the Chiropractic Licensing Act of 1973 permits such a usage.

Norville testified in part that his usage of vitamin prescriptions was complementary to his administration of spinal adjustments and therefore justified under the licensing statute. However, having concluded in the Harris case that vitamins are a medicine, Norville is precluded from making such an argument by the very words of the Chiropractic Licensing statute itself. The statute clearly states that the correction of interference with normal nerve transmission which is the purpose of chiropractic, shall be done “. . . without the use of drugs or surgery.” (Emphasis added). Section 73-6-1, Mississippi Code Annotated (1972). Section 1-3-7 defines the term “drugs” in the following manner: ’

The term “drugs” when used in any statute shall embrace all medicines for internal or externa] use for man or beast.

Thus, since vitamins are a medicine and the word “drugs” encompasses all medicines for use for man, the licensing act itself prohibits their use in the practice of chiropractic. We therefore conclude that the prescription of vitamins for the cure of an ailment by a chiropractor does constitute the illegal practice of medicine and such use is prohibited to chiropractors.

Norville has argued strenuously that since none of the vitamins involved require medical prescription and may be purchased by any layman over the counter in most stores, use of such vitamins should not be denominated “practice of medicine.” We are fully cognizant that any layman can obtain such vitamins and that any retailer can sell such vitamins. Purchase of or sale of vitamins is not however the vice which is condemned here. Rather the vice condemned and that which constitutes the unlicensed practice of medicine is (1) prescription of vitamins, (2) to cure, (3) an ailment or disease, (4) for compensation.

The chiropractor on the present facts does not simply sell vitamins to a customer who asks for them as does a retailer. Rather, he represents to a patient who has come to him that such vitamins will cure a disease or ailment. Further, unlike the relative or friend who recommends that someone take vitamins for nutrition or to prevent colds, and neither expects nor receives any compensation for such “advice,” the chiropractor in a professional capacity advises the patient to take the vitamins for the ailment or disease, charges compensation for such advice, and may cause the patient to think his ailment or disease will thereby be cured. This is the vice condemned and the danger of such is amply demonstrated by the record.

Norville testified that his treatment for people with high blood pressure or excessive cholesterol in the blood was a product called Cholaplex which was described as “a nutritional concentrate containing extracts of Calf Brain and Beef Liver, soluble fermentation residues, dehydrated extract of buckwheat (Green Leav) ageous extract of Bovine Orchic tissue [cow gonads] . yeast beef lipids and organic iodine protein complex.” When asked how he diagnosed the presence of cholesterol in the blood, he replied “by physical examination,” but admitted he did not take a blood specimen. There exists then the danger that a patient will be subjected to a medicine for a condition which does not exist, or fail to seek proper medical attention under the belief he is being “cured” by vitamins.

Thus, conceding that the vitamins prescribed may cause no harm themselves, may even be beneficial, and may be obtained without medical prescription, nevertheless, there are sufficient reasons to justify the legislative determination classifying the use of medicines, including vitamins, to cure ailments as the practice of medicine, and prohibiting chiropractors from utilizing medicines, including vitamins, to cure ailments.

III.

Was the petitioner, Mississippi State Medical Association, required to prove irreparable harm and lack of an adequate remedy at law before an injunction could issue?

Appellant argues that the Mississippi State Medical Association had no standing to bring this suit, and even if they had standing, they failed to show the prerequisites for injunctive relief, e. g., no adequate legal remedy and the existence of irreparable harm.

The first contention, going to existence of standing, has no merit. In an analogous case where a county bar association brought suit against a chancery court clerk for the unauthorized practice of law, we held that the bar association was a proper party in a suit of that nature, stating, “They had an interest in the subject matter, responsibilities as officers of the court, and were affected by any unauthorized practice of law.” Darby v. Miss. State Board of Bar Admissions, 185 So.2d 684, 686 (Miss.1966). On the issue of standing, there exists no reason to distinguish Darby. The State Medical Association has the same interest in preventing unlicensed practice as the State Bar Association.

However, with regard to the requirement of showing the usual prerequisites for injunctive relief, appellant stands on firmer ground. In Redmond v. State, 152 Miss. 54, 118 So. 360 (1928), a suit to enjoin the unauthorized practice of medicine, under a nuisance theory, this Court held that there must be a showing of irreparable harm and that there exists no other adequate remedy at law. In reaching that conclusion, the Court pointed out that the unlicensed practice of medicine “is not a nuisance per se, and if a nuisance at all, would be made such by the manner in which it was pursued.” (152 Miss. at 78, 118 So. at 367).

In requiring the establishment of prerequisites in such a case, the Court based its reasoning on the proposition that:

It is a delicate, though often a necessary, thing to condemn a business operated by a citizen. It may result in great loss, or even ruin, to his business. (152 Miss. at 82, 118 So. at 369.)

We note that while the evidence in this case clearly established the possibility of harm, there was no showing that actual harm had in fact resulted. Additionally, Mississippi State Medical Association has not shown that there are no other available legal remedies at law.

It is argued that section 73-51-1 should be construed to allow suit by the Mississippi State Medical Association without the need to show irreparable harm or lack of other adequate legal remedy. Section 73-51 — 1 reads as follows:

An action for an injunction may be brought and maintained in the name of any state board authorized to hold examinations and grant licenses to practice any profession to enjoin and prohibit any person from the practice of any profession required to be licensed by said board, when such person is practicing said profession and has not been granted a license therefor. (Emphasis added).

The argument of the Mississippi State Medical Association is that the statute was construed in an analogous case to obviate the need for showing irreparable harm, thus overruling the Redmond decision, Conway v. State Board of Health, 252 Miss. 315, 173 So.2d 412 (1965), and that in the Darby case, supra, we allowed a local bar association to bring suit without requiring a showing of irreparable harm or lack of legal remedy. This argument is not persuasive.

It is true that Conway construed suit under the statute to obviate the need for such a showing stating: “Section 8923-51 [now Mississippi Code Annotated section 73-51-1 (1972)] by implication assumes there was not an adequate remedy at law and that the injury was irreparable, i. e., the legislation was needed or else it would not have been enacted.” (252 Miss. 324-25), 173 So.2d 416.

However, there, suit was brought by the State Board authorized to issue the license as required by section 73-51-1. Similarly, in Darby, while we allowed the local bar association to have standing, we note that the state licensing board, e. g., the State Board of Bar Examiners, was a party to the suit, thus invoking the waiver of the usual injunctive prerequisites under the statute and the Conway decision.

In the present case, the state licensing board, e. g., the State Health Board, is not a party to the suit. In the absence of the state licensing board as a party to the suit, the requirement of Redmond still exists. We are of the opinion that the legislature, being cognizant of the holding in Redmond, carefully limited its wording when enacting the statute. Thus, at present, the existing statutory remedies which obviate the need for showing irreparable harm and lack of adequate legal remedies [Miss.Code Ann. § 73-51-1 (1972) and § 73-6-29 (Supp. 1977)] must be brought in the name of the licensing agency or of some official state prosecutor. The likely purpose of this was to require an official state investigation before such serious charges are leveled at a defendant. This is not to say that a state professional association is precluded from bringing suit, but in such instances, the proof must satisfy the irreparable harm requirement and it must be shown that other legal remedies are not available or have failed of effectiveness. That was not done in this case and the injunction was erroneously issued. Therefore, the injunction is dissolved.

REVERSED AND INJUNCTION DISSOLVED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . In 1966 the Legislature enacted the Physical Therapists Licensing Law (Laws, Ch. 484, Sections 73-23-1 through 73-23-25, Miss.Code Ann. 1972). The use of electrical appliances such as diathermy and ultrasonic machines by physiotherapists is not, however, “separate and apart from the field of medicine or surgery,” since Section 73-23-19 requires the physiotherapist to practice under, and only under the prescription or direction of a regularly qualified doctor of medicine.

      . “The fact that the substance employed as a remedial agent may have value as a food, and a tendency to build up and restore wasted or diseased tissue, will not deprive it of its character as a ‘medicine’ if it is administered and employed for that purpose.” 57 C.J.S. Medicine p. 1042, cited as controlling in Harris v. State, 229 Miss. 755, 767, 92 So.2d 217, 222 (1957).

      . In conjunction with the State Board of Bar Admissions.


source: Caselaw Access Project

author: BROOM, Justice,

license: Public Domain

text:
    SEABOARD PLANNING CORPORATION et al. v. Edward P. POWELL et al.
    No. 50581.
    Supreme Court of Mississippi.
    Sept. 6, 1978.
    Rehearing Denied Dec. 13, 1978.

      Crymes G. Pittman, Jackson, E. Clifton Hodge, Jr., University, for appellants.
    Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, Larry E. Clark, Taylorsville, Wise, Carter, Child, Steen & Caraway, Joseph P. Wise, Henderson Hall, Jackson, for appellees.
    Before PATTERSON, BROOM and LEE, JJ.
   BROOM, Justice,

for the Court:

“Blue Sky” laws are the basis of the suit of complainants, Edward P. Powell and wife, Lessie S. Powell (Powells), seeking rescission and damages for misrepresentation and fraud in the sale of securities to them by the defendant William Howard Yates. Other defendants to the Powells’ suit are: Seaboard Planning Corporation (Seaboard); Lexton-Ancira, Inc.; Lexton-Ancira Real Estate Income Partners, Ltd., 1973-B; Wade A. Myers, Fred L. Stallard, James R. Hoyt, Arthur E. Keller, Terry J. McGavern, and Kenneth T. Anderson (collectively “Lexton”); Peerless Insurance Company (surety for Yates and Seaboard); and the North River Insurance Company (surety for Lexton). Lexton-Ancira, Inc. and the other defendants (Yates and Seaboard excepted) respectively, herein designated “Lexton” unless otherwise indicated, are the corporate general partner and individual general partners of Lexton-Ancira Real Estate Income Partners, Ltd., 1973-B, a limited partnership. Trial in the Chancery Court of Hinds County, First Judicial District, resulted in a decree awarding the Powells $20,000 damages. Yates and Seaboard, against whom the decree was entered, appealed, and the Powells cross-appealed that part of the decree which denied them attorneys’ fees and also denied them any relief whatever as against Lexton. We affirm the $20,000 money decree.

Chief issues are: (1) Were the Powells defrauded and, if so, should Lexton be held liable along with Yates and Seaboard? (2) Are the Powells entitled to attorneys’ fees? Also argued is the two year statute of limitations. Yates was a self-employed security salesman and tax practitioner in Taylors-ville, Mississippi, where he prepared tax returns for clients, including the Powells. In 1973 he became a qualified and registered security agent, certified by the secretary of state. Yates learned that the Pow-ells, with limited education, sold their farm (which he knew was their only substantial asset) for approximately $70,000. When the seventy-seven-year-old Mr. Powell (Mrs. Powell was sixty-eight) discussed with Yates the matter of buying bonds, Yates discouraged him from buying bonds and called one Verilli (of Seaboard) to recommend an investment for Mr. Powell. Verilli put Yates in contact with McGavern, Vice-President of Lexton-Ancira, Inc., and general partner of Lexton-Ancira Real Estate Income Partners, Ltd. Lexton-Ancira Real Estate Income Partners, Ltd. is a limited partnership established to obtain current cash flow and tax advantages for the limited partners as well as capital growth through debt reduction and appreciation in real estate values which was accomplished by investing in real estate. The promoters sell limited partnership units (which Yates sold the Powells) to persons in higher federal income tax brackets, and by taking advantage of the depreciation provisions of the federal revenue statutes and regulations, produce considerable tax savings. Not sued were the limited partners: participants only in the profits and losses of the enterprise. Their liability is limited to the extent of their investment in the partnership, and they have no control over the actions of the partnership which the general partners manage. Persons in low income tax brackets generally do not profit from this type partnership.

McGavern sent Yates a prospectus, and after Yates had given it a cursory examination he drove to the Powells’ house on December 21, 1973. Yates told the Powells that he recommended this investment, and that this was a correct vehicle if Mr. Powell needed his money immediately. He also told them that the company intended to pay eight percent interest. During this approximately one hour interview, the Powells did not read the prospectus, and Yates did not discuss the entire prospectus with them. Yates succeeded in selling them forty units of the limited partnership for which Powell wrote Yates a $20,000 check.

Yates knew that the year of the sale was the only year that Mr. Powell had anything to sell to create any substantial tax liability, and that in the next year Mr. Powell, in all likelihood, was going to be back in a low income tax bracket, but did not explain this to them. Mr. Powell, a farmer most of his life, quit farming in 1965 because of a hip operation, and sold his farm because he was unable to take care of a large acreage. He had never owned corporate stock and did not know what a prospectus or a mutual fund order was. Mr. Powell had only a sixth grade education, and was totally unfamiliar with real estate investment trusts or limited partnerships.

The Powells received $400 checks representing eight percent interest on their investment the first two quarters of 1974, but the third quarterly dividend check was only $200 instead of $400. Mr. Powell complained to Yates in October 1974, and Yates made reassuring statements to Mr. Powell at that time. At the end of 1974, Powell received no check at all from Lexton, and came back to Yates to question him. When he did not get a satisfactory answer from Yates, he retained a lawyer and filed suit. Yates had written Lexton regarding liquidation of the Powells’ investment but was told that the securities had no established market and no cash-in value.

WAS YATES’ MISREPRESENTATION OF MATERIAL FACTS SUFFICIENT TO CONSTITUTE FRAUD, MAKING HIM AND SEABOARD LIABLE? To satisfy the general requirements of legal fraud, the proof must show, among other facts, that the party charged made false representations knowingly, or unknowingly under such circumstances that he ought to have known they were false whether he did or not. Scienter in a literal sense is not an essential ingredient of actionable fraud where, as here, Yates “should have known” his representations were false. Mayfield Motor Co., Inc. v. Parker, 222 Miss. 152, 159, 75 So.2d 435 (1954). There is no question that Yates was the agent of Seaboard and acted as such.

There is in the record testimony to the following: Yates never read the prospectus in full and failed to tell Powell that the investment involved a high degree of risk; Powell, though contradicted by Yates, testified that Yates promised him a guaranteed return of eight percent per annum, and that the investment could be cashed in at any time with a small discount. The record shows that when Powell asked Yates, “How can I get my money back? What can I do to get my money back?” Yates’ answer was, “I told him this was a correct vehicle if he needed money immediately . . . .” Yates claimed that he left a prospectus with Powell but Powell denied this.

We hold that Yates (Seaboard’s registered agent), under the evidence, was correctly found by the chancellor to be guilty of legal fraud under Miss.Code Ann. § 75— 71-25 (1972) and under the common law. Therefore, he and Seaboard (whom he represented) were correctly held liable to the Powells.

IS THE POWELLS’ CAUSE OF ACTION BARRED BY THE STATUTE OF LIMITATIONS? Miss.Code Ann. § 75-71-31 (1972) allows two years (within which to sue) after purchaser, by the exercise of ordinary care, should have discovered that such sale was made in violation of the chapter, or upon misrepresentation, and not thereafter.

The defendants claim that the statute started running at the time of delivery of the prospectus on December 21, 1973, more than two years prior to January 9, 1976, when suit was filed. Because of the relative unsophistication of the plaintiffs, the Powells argued (and the chancellor agreed) that their cause of action accrued when they did not receive the full $400 payment in October for the third quarter of 1974.

Assuming, however, that Yates did leave the prospectus with the Powells, would they, by ordinary care, have discovered Yates’ misrepresentations? To start the running of § 75-71-31, there must be not only fraud but some event to put the Pow-ells on notice. Here the Powells’ lack of education was a factor in the success of the fraud. At the time the fraud was perpetrated upon the uneducated Powells, it cannot logically be held that they as reasonable persons should have known of the fraud from the very instant they fell for Yates’ misrepresentations. The first indication that things were not as Yates had made them out to be was the receipt in October of $200 for the third quarter of 1974, which would place the filing of suit well within the statute. We think the evidence establishes that Yates knew or should have known that even if the Powells undertook to peruse the prospectus they would not be able to comprehend its contents. The very nature of fraud is such that it cannot be discovered until sometime after the fraudulent act is committed. Here, the Powells had no reason to suspect Yates or distrust his representations until such time as they were put on notice by the smaller payments or the absence of payments. On these facts, we hold that the statute did not begin to run until the Powells received the check for the third quarter of 1974. Accordingly, the suit, filed less than two years afterward, was not barred by the statute.

WAS THE CHANCELLOR IN ERROR WHEN SHE RULED THAT THE POWELLS WERE NOT ENTITLED TO RELIEF AGAINST ALL OF THE LEX-TON DEFENDANTS, INCLUDING THE CORPORATE GENERAL PARTNER AND THE INDIVIDUAL GENERAL PARTNERS? Stated differently, should Lexton be jointly liable with Seaboard and Yates because of the actions of Yates within the purview of the (“Blue Sky”) Mississippi Securities law? The Powells so argue; Yates and Seaboard contend that they committed no fraud but that, if they are to be held liable, Lexton should also be held liable.

The lower court found that Yates was the registered agent and representative for Seaboard but refused to find that Lexton was liable for the acts of the salesman, Yates. Noted by the chancellor was the fact that none of the Lexton defendants participated in the sale of the securities to the Powells.

The Powells contend that Yates acted for all the Lexton defendants, and that under First Mobile Home Corp. v. Little, 298 So.2d 676 (Miss.1974), it is not “necessary that agency exist for an issuer to be liable for the misrepresentation of another.” They say this is so because Miss.Code Ann. § 75-71-31(2) provides a right to recover from the “seller” which they assert is defined by First Mobile Home to include the issuer. § 75-71-31(2) does provide that:

Every sale or contract of sale of any security made in violation of any provision of this chapter shall be voidable at the election of the purchaser, who shall be entitled to recover from the seller in an action at law . . . . (Emphasis added).

For some reason, in enacting § 75-71-31 the legislature failed to define “seller.” The Powells make the assertion that First Mobile Home holds an “issuer” of stock to be a “seller under the statute, and that regardless of whether agency exists,” the Lexton defendants are liable. We do not construe First Mobile Home as authority to hold Lexton liable upon the facts presented here. Throughout that case the opinion alludes to participation (by those held liable) in the tort, inducement, knowledge, or misfeasance of some kind. Here we cannot say that the chancellor erred in finding upon the evidence that Lexton did not participate in the sale of the securities to the Powells, or in finding that Yates was not Lexton’s agent. First Mobile Home did not hold that in every situation the term “seller” includes any link in the chain of the selling process, but points out that Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956) so held. We note that the opinion in First Mobile Home referred to Brown and two other cases, and then imposed liability upon the corporation because “the sale of stock was without certificate of authority in violation” of § 75-71-31.

To apply First Mobile Home as argued here would tend to make all issuers insurers by holding “agent” to include anyone in or remotely having connection with the chain of distribution of securities. When she refused to impose liability on the Lexton defendants, the following evidence was before the chancellor. Yates testified that McGa-vern (of Lexton) did not have anything to do with the sale other than explain the nature of the offering. McGavern testified without contradiction that he did not know that Yates had the Powells in mind as his customer. Yates was not employed or paid by Lexton but received his commission from Seaboard. Nothing in the record indicates that the issuer (Lexton) either controlled or had the power to control Yates, the agent of the broker-dealer, Seaboard. Neither does any evidence suggest nor do the Pow-ells charge that the issuer had knowledge of any of Yates’ misrepresentations. Another feature of this case distinguishing it from First Mobile Home is that there the misrepresentations charged originated as an offer of the corporation made by its president and subsequently passed on to the stock purchasers, which is not true here. Yates’ uncontradicted testimony was that he was not employed by the issuer, but by the broker-dealer (Seaboard), the source of his authority.

Upon testimony presented to her, the chancellor correctly held that Lexton (including all the partners therein) did not participate in the sale of the security to the Powells or induce the Powells to make the purchase. Absent either a principal and agent relationship or any actual participation in wrongdoing on the part of Lexton, the chancellor correctly refused to hold Lexton liable on authority of First Mobile Home. We conclude that the lower court properly refused to hold Lexton jointly liable with Seaboard and Yates based on any theory of agency or any statute cited. Our ruling in no way reaches (and is without prejudice to) any cause of action or claim Yates and Seaboard may possibly have against Lexton related to the funds which Yates induced the Powells to pay out.

SHOULD THE CHANCELLOR HAVE MADE AN AWARD OF ATTORNEYS’ FEES TO THE POWELLS? We think it clear that Miss.Code Ann. § 75-71-25 (1972), makes the award of attorneys’ fees appropriate in this case. The chancellor found that Seaboard was employed by Lexton-Ancira to sell units of limited partnership interests and that Yates was Seaboard’s registered agent. On the facts as shown by the record and found by the chancellor, attorneys’ fees are allowable under § 75-71-25, which provides for relief where any investment company or proposed investment company “by the officers, agents, employees or promoters” induces a purchase such as was made here by the Powells because of Yates’ misrepresentation of material facts.

As to the amount of attorneys’ fees to be awarded the Powells, the record as made can hardly be said to be adequate. The chancellor upon meager proof merely ruled that such fees were not allowable in this case, and made no determination as to what would constitute a reasonable and proper award, if granted. There were before her certain itemized statements of attorneys, but the proof as to whether the listed items charged were reasonable and proper was skimpy at best. Upon the record, justice will be better served by remand for the sole purpose of making a determination of the proper amount of attorneys’ fees. The lower court will grant the proper parties an opportunity to present proof regarding the amount of attorneys’ fees and fix the amount accordingly. Johnson v. Howard, 167 Miss. 475, 141 So. 573 (1932). Attorneys’ fees as then awarded shall relate to both trial and appeal.

DOES MISS.CODE ANN. § 75-71-25 (1972) LIMIT THE AMOUNT OF THE POWELLS’ RECOVERY TO THE AMOUNT OF THE BOND? The statute is clear that it limits only the recovery against the surety to the amount of the bond but makes no such limitation as against other defendants.

We deem it necessary to make only brief mention of the argument of the Pow-ells that the prospectus which they finally received was not in conformance with the rules promulgated by the secretary of state’s office. On that basis, they assert (as an additional ground) that they are entitled to recovery. We have already held that they are entitled to recovery as against the defendants Yates and Seaboard. In this regard we note that the secretary of state approved the prospectus, and we find no defects therein of such a nature as to constitute fraud or its equivalent, and thereby make Lexton liable.

We hold that the chancellor correctly found against Yates and Seaboard, and her decree against them for $20,000 plus interest will be affirmed. In decreeing that the Lexton defendants were not liable, the chancellor will also be affirmed. Remand is ordered for the sole purpose of fixing the amount of attorneys’ fees to be awarded the Powells as against Yates and Seaboard. The decree against Peerless Insurance Company in the amount of $5,000 will be affirmed, and the amount of $5,000, when paid by the surety, will be credited toward the decree against Yates and Seaboard. Court costs will be assessed against all of the defendants or parties against whom the Powells are granted relief.

AFFIRMED IN PART, AND REMANDED FOR FIXING AMOUNT OF ATTORNEYS’ FEES.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

      . Since Brown v. Cole was decided, the Texas Legislature amended its “Blue Sky” laws to specifically limit the category of persons besides those immediately involved in such sales to “control persons” defined as those who directly or indirectly control a seller, buyer, or issuer of a security.

      . Section D(5) of the Secretary of State’s Guidelines on LIMITED PARTNERSHIPS provides: “The general partners . . . must take the proper steps to determine whether . the investor meets the criteria set out in these policies.” This guideline is not relied upon specifically by either party nor briefed and, therefore, is not an issue. Neither is there any argument made as to how much authority or discretion the legislature may delegate to the Secretary of State in promulgating policies, regulations, etc. This court recently addressed the matter of delegation by the legislature to an administrative agency of authority to define crimes. State v. Russell, 358 So.2d 409 (Miss.1978).

      . No part of the record has come to our attention indicating that the chancellor was requested to make a finding on a specific factual issue.

      . The decree appealed from properly credits Yates and Seaboard with the $1,000 which the Powells received on the security units Yates sold them.


text:
    William H. JENKINS v. The INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY.
    No. 50750.
    Supreme Court of Mississippi.
    Oct. 25, 1978.
    Rehearing Denied Dec. 13, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Jackson H. Abies, III, Thomas H. Suttle, Jr., Jackson, for appellee.
   Appeal from Chancery Court, Neshoba County; Edward C. Prisock, Chancellor.

Before PATTERSON, C. J., and BOWLING and COFER, JJ.

Affirmed.


author:
COFER, Justice,
      BOWLING, Justice,

text:
    SHIPPERS EXPRESS and Liberty Mutual Insurance Company v. Ernest CHAPMAN.
    No. 50533.
    Supreme Court of Mississippi.
    Nov. 1, 1978.
    Rehearing Denied Dec. 13, 1978.

      Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Jackson, for appellants.
    Charles O. Jones, Doug Wade, Jackson, for appellee.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   COFER, Justice,

for the Court:

This case is here on appeal from a decision of the Circuit Court of the First Judicial District of Hinds County. The Workmen’s Compensation Commission had held that the two-year statute of limitations afforded under Mississippi Code Annotated, section 71-3-35 (1972), within which after date of injury, claimants may apply for benefits, had run on the claim of appellee, Ernest Chapman, for such compensation. The circuit court reversed the commission’s order.

We reverse the circuit court’s decision and reinstate the order of the commission.

Appellee had been employed by Shippers Express since 1969. His employment duties were the repair of all kinds of tires used on the trucks of his employer and refill the trucks with gasoline, if he had spare time from his tire repair job.

On December 31, 1972, he was at the tasks of his employment and was rolling two tires. One of the tires fell, and as he tried to straighten it up, he lost his footing and fell, the other tire falling across his side and arm. He blanked out for a moment, then removed the tire from over him and arose. He felt numbing pain all day, the immediate feeling being like pins sticking in his upper left chest. He also received an abrasion or cut on his chest and left arm. When he arose from his fallen position, he went, twenty-five or thirty minutes after the accident, and told his boss that he had gotten hurt and that he was going home, and checked out at eleven a. m. and went home with pain in his left arm, left chest and shoulder. Later, without detailing here the intervening activity on his part, he was taken to University Hospital, Jackson, Mississippi, since which, to the date of his testimony, he had been returning to the hospital for treatment.

For purposes of this decision, it may be assumed that his injury and physical condition thereafter were related to, and caused by, the accident hereinabove noticed.

No payment of compensation has been made, and no application for benefits was filed by him with the commission until long after the expiration of the two years provided by Section 71-3-35.

On June 6, 1975, he filed a motion to controvert with the commission. Answer was accepted by the commission on June 16, 1975, wherein the employer and its carrier moved for dismissal of the claim asserting that it was barred by the statute of limitation and alleging other defenses. Answering the motion to dismiss, appellee said that he “was never advised by any physician that his injury was related to his employment with Shippers Express and claimant does not have the mental capacity to appreciate the nature and extent of his disability and the fact that his disability was proximately caused by the injury, and as a reasonable man could not know that he had sustained a compensable injury and disability.” That on or about May 27, 1975, it was discovered by an examination of claimant’s hospital records at the University Medical Center by claimant’s attorneys that claimant’s injury was job related and probably caused his disability.

Following hearing on May 18, 1976, on the sole issue of his mental competency, the Administrative Judge on June 18, 1976, entered an order reviewing the testimony adduced before him and made the following findings of fact:

Having heard and considered all of the evidence presented in this cause, both oral and documentary, which said evidence is considered to be substantial and having observed the demeanor of the claimant and the witnesses in this matter and having studied the very excellent briefs supplied by the attorneys, I make the following findings of fact, to-wit:
1. That the evidence submitted is insufficient to establish that the claimant was mentally incompetent to such an extent as would toll the Statute of Limitations as provided by Section 71-3-35 of the Mississippi Code of 1972, annotated, subsection (b)[2];
2. That the accident or injury occurred on December 31, 1972, and the Motion to Controvert was filed with the Commission on June 6, 1975; and
3. That the Statute of Limitations has run on any claim the claimant might have as a result of his accident and/or injury of December 31, 1972.

and denied and dismissed the claim.

The full commission, on review of the proceedings affirmed the Administrative Judge’s order, with the chairman dissenting and rendering separate opinion.

Mississippi Code Annotated, section 71-3-51 (1972), says that on court review of the commission’s orders:

If no prejudicial error be found, the matter shall be affirmed and remanded to the commission for enforcement. If prejudicial error be found, the same shall be reversed and the circuit court shall enter such judgment or award as the commission should have entered.

The Commission is the trier of facts and judge of the credibility of witnesses and a finding by it, supported by substantial evidence, is not to be disturbed on appeal. Roberts v. Junior Food Mart, 308 So.2d 232, (Miss.1975), and authorities cited therein.

The substantial evidence necessary to support a finding of the commission may not be found from a small part of all of the evidence, and all of the evidence is necessary to be considered because the act is to be administered justly and reasonably. Tiller v. Southern U. S. F., Inc., 246 So.2d 530 (Miss.1971).

A physician’s testimony, though taken in isolation, might amount to substantial evidence supporting a finding by the commission, when considered with the entire evidence may lose much of its character and not rise to the position of substantial evidence. Harpole Brothers Constr. Co. v. Parker, 253 So.2d 820 (Miss.1971).

Mental competency vel non determines running or tolling of the statute.

Appellants cite and quote from Thomas v. Westinghouse Electric and Mfg. Co., 160 Fla. 687, 36 So.2d 377 (1948); Edge v. Dunean Mills, 202 S.C. 189, 24 S.E.2d 268 (1943); Royal Indemnity Co. v. Agnew, 66 Ga.App. 377, 18 S.E.2d 57 (1941), and cite without quotation, Petteway v. Continental Casualty Co., 112 Ga.App. 496, 145 S.E.2d 635 (1965), and Kell v. Bridges, 77 Ga.App. 424, 48 S.E.2d 780 (1948), and conclude that “the recognized test for mental competency is whether or not a person is able to manage the ordinary affairs of life.” (Emphasis added).

Appellee adopts in his brief, the test in the Agnew case, supra.

In other words, the test as to whether the claimant is so “mentally incompetent” as to toll the running of the statute of limitations, is this: is his mind so unsound, or is he so weak in mind, or so imbecile, no matter from what cause, that he cannot manage the ordinary affairs of life? (Emphasis added). (66 Ga.App. 380, 18 S.E.2d 59).

Thus, the parties are together insofar as the test of mentally competent or not is concerned.

Appellee and his psychological evaluator, Roy Otto Darby, III, testified and rested. Appellants used no witnesses.

The witness Darby, permitted by the Administrative Judge to testify as an expert in his field of psychological evaluation, saw appellee one time, on September 30, 1975, at the Jackson Mental Health Center, where the witness was employed. Appellee was sent by his attorney for psychological evaluation, and was assigned to the witness therefor. The witness interviewed him and conducted tests on him to “determine the present level of the claimant’s intellectual and psychological functioning.” He testified that appellee was very cooperative in all aspects of the proceedings, answered questions the best he could, was well oriented as to his person, who he was, the place of the examination, and the general nature of the situation in which he was involved at that moment, and was aware that he was being evaluated by the witness. He was a little confused as to the exact date, had to be reminded frequently to return to the question asked him or to the test on which he was. Appellee identified his own problems as being centered around being nervous. He was considerably concerned for his physical health and well-being. On historical data of himself and as to what was going on pertaining to him at the time, his thoughts tended to be very simple. He testified that in the interview “there was no evidence of any bizarre kind of thinking. His insight into what has happened was subjectively judged to be normal and his judgment also was found to be below average.”

He administered the Wechsler Adult Intelligence Scale, a portion of the Wechsler Memory Scale, and the Rorschach Ink Blot and Bender-Gestalt. The adult intelligence test, he said, is that most frequently used method of measuring overall intelligence ability, and is generally accepted as the best way to measure a person’s intellect. On the test, he scored an overall mark of 54 as compared to 100, the statistical average over a large population of people. In the memory test, his immediate recall was 3.5 on a scale of 7 to be expected; after 90 minutes, he could recall only two memories, from which the witness concluded he had a severe memory impairment. On The Bender-Gestalt, a widely used test, the appellee showed a severe perceptual motor deficit, a very low level of neuro-psychological functioning. On the Ink Blot test, the witness’ conclusion was that appellee’s performance suggested a person with rather confused thinking.

Among the conclusions he found he evaluated appellee as being “on the borderline to retarded range.”

In a confidential report dated October 28, 1975, made Exhibit “A” to his testimony, wherein he said the examination was on September 30, 1975, he said “The results of these multiple deficits severely restrict Mr. Chapman’s ability to cope with any but the least complex and least demanding situations.”

On cross examination, he said his records showed appellee has a first grade education, no evidence of psychosis was found, he saw appellee only on the one occasion, September 30, 1975, and the total session with him took approximately two and a half or three hours.

He did not know how appellee was functioning on the date of the injury, and was not willing to say the findings of his September 30, 1975, session would be consistent with whatever findings he would have made had he had a session with him on the date of the accident. He had serious reservations as to appellee’s ability to hold a job owing to his memory impairment and his overall intellectual functioning, and thought he would have to have high supervision and no responsibilities. He believed appellee needed assistance to carry out day to day activities. Under Rule 8, of the Rules and Regulations of the Commission, the witness was permitted to testify based on the session and on his experience as an evaluator, that his clinical opinion was that there has been some degradation of function but he believed that appellee has always been just a borderline retarded range. (Neither party asked for subsequent action by the Administrative Judge on this opinion.)

Appellee testified to the date of his birth, his age, for whom he was working on December 31, 1972, that on that date he got hurt, his duties, details of the accident, size of the tires he was rolling, which one fell on him, its weight, how he got out from under it, his approximate weight at the time, the condition of the dock on which he was working, approximate time of the occurrence, on which day of the week it happened, how he felt after the accident, what he did when he got back on his feet, that he told his foreman, Ollie Chalk, that he got hurt in about 25 to 30 minutes he reckoned, that he punched out at eleven a. m., went from the scene of his work on a Shippers Express truck, where he got out of the truck, that he walked from there about a block to his home, sat on his door steps before he entered the house, told of the pain in his left hand, left chest and shoulder, took a hot bath, went down the street, met a friend, drank an Alka-Seltzer, which did not help his feelings, sat down awhile, went back to his house, lay down the rest of the night, Saturday night, a friend stayed with him, who carried him to his sister’s house, where he fell out, and she took him to the University Hospital to the doctor, he did not know when that happened, would say he went on Sunday night to the hospital, University Hospital, in Jackson, Mississippi, was paining him when he went in there, the same pain as on the day of the injury, they “doped” him up and he did not know anything until he awakened.

He further related that he started working for Shippers Express in 1969, before that time, he was working for B. F. Goodrich Company, fixing flats, “doing around,” and washing trailers, this job lasting about a year and a half. Before his connection with Goodrich he hauled pulpwood, seven or eight years for one employer; he was born at Brookhaven, Mississippi, attended school one year, no other education, he could write his name, but could not read; he had been in the University Hospital two times before for a “little cut” over his eye, and he got his leg cut with a power saw, when he was about seventeen or eighteen years of age, and a doctor treated him for that injury; he was thirty-two years of age when he got his eye hurt; the eye injury was five or six years before the December 1972 accident; never had been to the doctor for his heart before.

From the University Hospital stay for the injury in question he has been going back and forth to his physician, who has been checking him to see the trouble he had. He had a pain or two immediately afterward, and that was why they kept bringing him back, and they gave him medicine and things, he is presently under a doctor’s care, and last went to him in the month preceding his testimony, at the University Hospital; he gave an account of his usual duties at Shippers Express, had another helping him, but when the helping person was not there he did the work by himself, described again feelings immediately after the injury.

Again under Rule 8, he testified to what his doctor told him about his injury, to take care of himself and not be picking up anything heavy, or anything straining.

On cross examination, he told again some details of the accident, and of his duties, the hours of his work, condition of the weather, time he came to work that morning, had not been working after the injury.

He started working when he was above fourteen years old.

He detailed again certain of his testimony as to his activity in the hours and days after the injury. He was then living on Farish Street in Jackson, his sister lived at 105 Hannah Street, the next street over from Farish Street.

He told of having been married, that he was separated, about twelve years before, he last heard from his wife in California, he gave names of the two children born to the marriage, they live in California, grown now.

He went over certain of his job duties, the occurrence and said the company had seventy-five or eighty trucks, his doctor, Lee Hern, told him he had a heart attack. On July 1972 he got some diesel fuel in his eyes and reported it to his foreman, Chalk, and went to the doctor who gave him some eye medicine; at the hospital he had so many doctors he could not remember their names, about ten or twelve of them; they prescribed medicine for him, and he told the use of each of these, and told other instructions physicians had given him.

This exchange between him and the attorney:

Ernest, I take it you are able to take care of your money and pay your bills?
I just have enough to pay my bills.
And you know how to pay those bills, don’t you?
Right.

We have gone to extensive length in relating the testimony of both appellee and Mr. Darby, the former in much the same order and sequence thereby reflecting his memory and thinking functioning.

Perhaps, alone and in spite of its remoteness to the injury, and the entire two years while the statute of limitations was in operation, Mr. Darby’s testimony might be appraised as substantial evidence, on which to base a decision of mental incompetency on the part of appellee during the crucial period. The open detailed testimony of appel-lee which appears from the record to have been given with little hesitancy, faltering or difficulty in remembering, dilutes and drains away much of the character of that given by Mr. Darby. We conclude that instead of reliance on Mr. Darby’s testimony, the Administrative Judge and the majority of the commission had very substantial evidence upon which to base their decisions against appellee’s mental incompetency under the statute. Harpole Brothers Constr. Co. v. Parker, supra.

The decision of the commission was correct in our opinion, and we reverse the circuit court’s decision and reinstate the order of the commission.

REVERSED AND ORDER OF THE COMMISSION REINSTATED.

SMITH, and ROBERTSON, P. JJ., and SUGG, WALKER and BROOM, JJ., concur.

PATTERSON, C. J., and LEE and BOWLING, JJ., dissent.

BOWLING, Justice,

dissenting:

I dissent from the majority opinion. A study of the record in this case convinces me that a grave injustice would be done if this Court did not uphold the written, analytical opinion of J. T. Noblin, Chairman of the Mississippi Workmen’s Compensation Commission, and the opinion of the Circuit Court finding that opinion to be correct.

There is no real dispute in the record. The only testimony was that of the claimant, Ernest Chapman, and Roy Otto Darby, III, a psychologist with the Jackson Mental Health Center. Mr. Darby had a master’s degree and equivalent schooling for a pending PHD in Clinical Psychology. All he lacked was completing his internship. His testimony has to be accepted by this Court and is, in any manner, only offset by the cold words of the record relating the claimant’s testimony. In my humble opinion, we, as an appellate court, cannot read into the appellant’s testimony the evidence of a mentally competent person as was implied in the majority opinion.

The sole question before the Commission, the Circuit Court, and this Court was whether or not the two-year statute of limitations for bringing the claim was tolled by Mississippi Code Annotated section 71-3-35(2) (1972), which provides as follows:

If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the limitation for filing application for benefits shall not be applicable so long as such person has no guardian or other authorized representative, .

Appellant’s testimony revealed that he has no education and cannot read or write. The only work he has done is such as hauling pulpwood, fixing flat tires and putting gasoline in vehicles. It is undisputed that he even needs supervision to do this type of work, and always has.

The appellant received his injury on December 31, 1972. His request for compensation was not made until June 6, 1975, five months and one week after the statute of limitations had expired. The record is completely clear that during this period of time he had no idea that he had a possible claim for workmen’s compensation and could not appreciate it if he had such knowledge. It is clear from the record that someone finally got an attorney to check the medical and hospital records to ascertain the possible claim, something that obviously not even his doctor had advised him. It could be that this situation resulted from the fact that he was treated at the University Hospital where he was seen by many different doctors, interns and students.

Mr. Darby, an admitted expert, had the only testimony in the record on which ap-pellee’s condition can be based, and testified that Chapman related the events that had happened over the years “haphazardly.” During the interview and the tests, Chapman’s thought processes “as reflected in his speech, would tend to become conjunctional, which means he would begin on one subject and would trail off into a series of other subjects.” The tests revealed that Chapman had an IQ of 54, with his performance IQ being 48. Several tests were administered, one of which was Chapman’s performance on the “Bender Gestalt test.” which revealed “severe perceptual motor deficits” and a “very low level of neuro-psy-chological functioning.” One of the main tests given Chapman revealed that “he’s a man whose mental approach shows deficiency in being able to cope in an ambiguous situation or a non-struetured situation and to put it together as a meaningful whole.”

The psychological evaluation summary was as follows:

The results of the total interview data and the test data portray an individual with significant neurological impairment as well as personality handicaps. His overall mental function is evaluated to be on the borderline to retarded range. There is evidence of significant neuropsy-chological deficit, particularly in the perceptual motion operations and memory areas. His personality development and organization is likewise poorly organized. His view of realty is poorly, although this is not a psychotic condition. He is only mentally able to deal with emotional demanding situations. His emotions are not well indicated to his personality and to me he shows a number of deficits in all area.

The specialist further testified that Chapman “was oriented as to the person, place and situation but not as to time.” He further stated that he had reservations as to whether Chapman could adequately perform jobs such as a pulpwood hauler and changing tires. To do this, he would have to “be highly supervised with no responsibilities.”

With the above undisputed evidence, the only way the hearing officer, the two members of the Commission and this Court could hold the appellee mentally competent was, as stated at the outset, from the cold words in the record, which, with deference, do not justify discarding the undisputed expert testimony in connection with the history of appellee both before and after his injury.

There are a number of “statutes of limitations” barring claims and various types of actions in a number of different activities and legal situations. An examination of them reveals that these statutes state that “a person of unsound mind” is not subject to the limitation period. The Legislature, in enacting the Workmen’s Compensation law, recognized that one excuse for substituting that law for the old master-servant liability was a liberal interpretation of the act in favor of the injured working person. The Legislature saw fit not to follow the language of the other statutes of limitations but only required that the guideline for tolling the two-year statute in question was that the claimant “be mentally incompetent.” It is beyond this writer’s thinking that the evidence related above, even when considering the cold testimony of the claimant in the record, would justify a finding by any judicial or quasi-judicial body that the claimant had sufficient mental competency to permit the running of the two-year statute of limitations.

I realize the many opinions of this Court holding that the Commission is the trier of fact, even though the statute granting appeal from the Commission to the circuit court mandates that the “circuit court shall review all questions of law and of fact,” without any statutory limitation. Even without this mandate, I do not think that the holding of the two members of the Commission should be of any greater import than the one member, the chairman, whose opinion is hereinbefore discussed. This is reasoned by the mandate in the Workmen’s Compensation Law (Code § 71— 3-85), that one member of the Commission shall have represented employers, one member shall have represented employees, with one member being impartial. I do not think that the circuit court or this Court should be put in a position of guessing which member represents which party and going along with the theory that what the majority finds as a fact is in reality the correct fact, or whether or not the factual finding is erroneous. As stated above, this is contrary to the statute which requires the circuit court to review questions of fact.

I would affirm the finding that the appel-lee was not mentally competent as required by the statute.

PATTERSON, C. J., and LEE, J., join in this dissent.