Wetzel

This is an action for damages against a physician and surgeon for malpractice in negligently setting the femur bone in plaintiff’s leg.

In his complaint plaintiff charges that on or about the seventeenth day of May, 1922, he broke this bone in his right leg, and, relying upon the skill of defendant, employed him to attend to the injury and to give him such care and treatment as was usual and necessary in such eases to effect a cure. Continuing, plaintiff charges that defendant so negligently and unskillfully conducted himself in attempting to set the leg that the ends of said femur bone were allowed to overlap, and were not properly joined together, through which plaintiff’s leg became deformed and became and remained permanently shortened.

The complaint was filed August 16, 1923. A demurrer to this complaint was sustained, apparently upon the ground that the cause of action alleged was barred by subdivision 3 of section 340 of the Code of Civil Procedure. An amended complaint was thereupon filed, in -which the injury to plaintiff and his employment of defendant “to attend to his said injury and give him such care and treatment as was usual and necessary to effect a cure’’ was…