ON MOTIONS ROB REHEARING.
Jenkins, P. J.Counsel for the defendant correctly state the theory on which the judgment was reversed, as follows: “The case was reversed upon the ground that fthe petition was sufficient to withstand the general demurrer in its allegations of wilful misconduct, so as to present a jury question whether the alleged injuries, if proved, were inflicted wilfully and wantonly.’” They submit that “a review of the pleadings will' not sustain this conclusion;” and that this court should not “seize upon an obscure and entirely inadequate allegation and a theory that has been neglected if not abandoned, in order to re-establish a case fully argued, twice submitted to the lower court, and twice dismissed on demurrer.” While counsel have correctly stated the adjudication made by this court, the holding that the petition raised the question of wilful and wanton misconduct was not grounded upon the amount, manner, or degree of force applied by the conductor in ejecting the plaintiff under the circumstances stated, but upon the alleged facts that she, a young woman traveling alone, was required to leave the train on a dark night while a heavy rain was falling, at a small station after the depot was closed, without shelter. Under the facts alleged in this case, the conductor having charge of the train, and it being the duty of the plaintiff riding thereon to obey his positive orders, we do not think the question of what amount of physical force, if any, was applied, is material under the contentions made as to wilful misconduct. The averments with respect to the circumstances of the ejection were in our opinion such as to present a jury question upon the alleged “wilful and deliberate act” of the defendant’s agent.
It is true that counsel for the plaintiff, in their briefs and argument, strenously contended that the status of the plaintiff under the facts narrated was such as to subject the defendant to damages for her ejection, irrespective of any allegation of wilful misconduct. *704Various principles of law were urged in support of this proposition. We do not feel authorized to hold, however, that, because counsel made these contentions and stressed them at length, and after full consideration by this court we deemed them without merit, we would be authorized to disregard the averments of the petition, specifically alleging that the act of the defendant’s agent was “wilful and deliberate,” and setting forth in detail attendant facts such as, if proved, would present an issue for the jury upon the question of wilfulness. While counsel for the plaintiff urged and stressed at length their contentions, with which we have disagreed, on the question of ordinary negligence, they did not fail to set forth in their briefs the averments of their petition charging the act of the defendant’s agent as “wilful and deliberate,” nor fail to refer in their briefs to the circumstances plead in support of this allegation. After mentioning these, and the failure to furnish the pass, the brief states: “She also asked for damages for the wilful act of the defendant’s 'conductor in forcibly ejecting her from the train at Way’s Station, and while a rain was falling, there being no place open to her at the station to avoid the rain.” Nor did counsel fail to insist generally that the demurrer was illegally sustained. The brief states: “The defendant’s demurrer, both general and special, to plaintiff’s petition should be overruled. This case should proceed to trial before a jury.” We are not unmindful of the decisions cited by counsel for the movant to the effect that assignments of error which have been abandoned by counsel will not be considered by this court. The demurrer to the petition set forth, among its grounds, that “the petition sets out no cause of action against the defendant,” and that the paragraph alleging wilfulness showed “no wilful and deliberate act of the defendant’s conductor.” The order of the court sustained the demurrers and dismissed the petition upon all grounds. The plaintiff in her bill of exceptions expressly assigned as error that “the court erred in sustaining each of the ten grounds in the original demurrer and each of the three grounds of the demurrer to the petition as amended, because said order and judgment was and is contrary to law.” By this assignment the grounds of the defendant’s demurrer that the petition set out no cause of action, and showed no “wilful and deliberate act” by the defendant’s agent, were presented to this court for determination. It is well settled by statute and adjudication that the *705party moving for a new trial, or filing several assignments of error or exceptions, must either argue or generally insist upon those grounds, assignments, or exceptions which he desires this court to consider. But where, as in the instant case, the plaintiff in error has assigned error on the sustaining of a demurrer to a petition upon all of its grounds, and has generally insisted by brief that this judgment was erroneous upon all of the grounds, and that a case was presented which should proceed before a jury, we know of no rule of .law or precedent which would permit this court to limit itself to a consideration only of those grounds of demurrer, made by the opposite party, which are argued at length by the plaintiff in error. Where a plaintiff in error upon the sustaining of a demurrer thus insists that his petition sets forth a cause of action and raises issues for a jury, the reasons which he may state in his brief are merely matters of argument.
Of course we do not mean to make any intimation as to the merits of the case; but taking as true each and every averment of the petition, as is our duty on demurrer, we do not feel authorized to hold that the judgment dismissing the petition, which set forth a cause of action, should be affirmed merely because counsel for the plaintiff stressed at length other and different contentions, which were in our opinion without merit.
Rehearing denied.