ON REHEARING.
Our attention is directed, on an application .for rehearing, to the fact that the original brief not only complained of the evidence not being sufficient to support a claim for punitive damages (a proposition passed upon in the opinion), but that the point was also made that such damages were not recoverable in the form of action (ex contractu), brought by the plaintiff (appellee), and that the court’s refusal to give the written charge requested by appellant, to the effect that there could be no recovery of punitive damages, was argued and insisted upon as con*253stituting reversible error, and was made the basis of an assignment of error. We are of the opinion that this question is presented for our consideration so as to require a review here, and has not been waived or abandoned under the rules we have discussed.
(6) The action is clearly ex contractu, and the appellees confessed the appellant’s plea in abatement, averring the contract sued upon as joint. • The trial was had upon the theory of an action upon contract, and there is no other reasonable construction that can be placed on the counts of the complaint than that they are on contract. The action was accordingly ex contractu. The question, then, is fairly presented as to the plaintiffs’ right to recover punitive damages in an action of that nature. That punitive damages are not the proper element of damages to be assessed in an ex contractu action of this kind has been decided by the Supreme Court when having that proposition directly under consideration.—Western Union Telegraph Co. v. Rowell, 153 Ala. 295, 45 South. 73; Western Union Telegraph Co. v. Benson, 159 Ala. 254, 48 South. 712. In the latter case, citing the former in support of the ruling, it is said, in passing on a written charge given for the plaintiff submitting the question of assessing puni tive damages to the jury: “The action is ex contractu, and sucn damages are not recoverable.”—159 Ala. page 274, 48 South. page 719. See, also, St. L. & S. F. R. R. Co. v. Hunt, 6 Ala. App. 434, 60 South. 530.
The error of the court in submitting the question of the recovery of punitive or exemplary damages to the jury was prejudicial error under the facts shown by the record, requiring a reversal of the judgment. The former order of affirmance is set aside, the judgment appealed from its reversed and the case remanded, to the. end that a trial be had in conformity with our holdings.
Reversed and remanded.