Crawford

This is an action against a physician to recover damages resulting from the breach of an oral contract whereby he warranted that his radium treatments of plaintiff would not leave a permanent sear on her neck. Defendant pleaded the statute of limitations, averring that the action was barred by subdivision 3 of section 340 of the Code of Civil Procedure and by subdivision 1 of section 339 of that code. The latter section, in subdivision 1, provides in substance that an action upon an oral contract is barred in two years. At the close of her evidence plaintiff was nonsuited upon the ground that the statute of limitations had run. Judgment for defendant was entered accordingly, and from that judgment plaintiff appeals.

The complaint alleges in substance that in 1917 defendant, who was consulted by plaintiff with reference to swollen glands on the right side of her neck, undertook to treat the swelling with radium, at the same time orally agreeing and warranting that no permanent scar of any kind would result from the treatment; that any scar which might result would disappear within a reasonable time; and that a reasonable time for its disappearance would probably be a year or…