delivered the opinion of the court.

We are not prepared to say that the circuit court erred in refusing the charge refused to- the defendant. The evidence pretty clearly indicates that this dispatch never was delivered to the appellee, and that his name was signed on the-telegraph book, acknowledging its receipt, without authority from him.- It also shows without contradiction that the same messenger boy had delivered a prior telegram to the appellee at the place of residence he occupied when this telegram was received. The telegram on its face informed the operator of the importance of its-delivery, and we decline at this time to say whether or not punitive damages may be awarded in this case. We remit that question to another trial and a fuller hearing.

But it was fatal error to give the first and third instructions for the plaintiff. The third instruction charged the jury that the company was liable for a statutory penalty of $25 if it neglected or refused to deliver the message within a reasonable time to the plaintiff, etc. As we have heretofore held, in Postal Telegraph, etc., Co. v. Shannon, 91 Miss., 476, s. c. 44 South., 809, this statute was not a jiart of Code 1906, and there was no statute on the subject at the time this cause of action arose. The first instruction charged the jury that, “unless they believed from the evidence that the defendant delivered the message to J. L. Morgan at 9 :30 a. m., March 27,1906, they should find for the plaintiff.” This was'fatal error. The issue was, not whether the message was delivered at a particular hour or not, but whether the company had exercised due diligence in delivering-the message whenever it was delivered, or even if it had not been delivered at all. What the jury were to decide was the question whether the company exercised reasonable diligence in delivering *113it, or trying to deliver it; and that question did not tnrn at all upon the single peremptory proposition as to whether it was delivered at 9 :30 a. >i., March 27, 1906.

Reversed and remanded.