The opinion
GOLDTHWAITE, J. —
The bill of exceptions shows, that on the trial below, the judge held, that a recovery in an action for the hire of a horse, buggy and harness, was a bar to a recovery in the present suit, which was between the same parties to recover damages for injuries done to the buggy and harness while in the possession of the bailee. It is true, that where a claim is in its nature indivisible, it cannot be split up into different causes of action ; and this rule applies to torts as well as contracts. — Abner v. Holt, 11 Ala. 574 ; O’Neal v. Brown, 21 ib. 482. But this is not the case here. The bailment, or hiring, is entirely distinct from the injury done to the thing bailed; so that the ruling of the court was, in effect, that a recovery in one action would operate to defeat another, where the subject-matter of the two actions was in no respect the same. We need not cite authority to show that this is error.
It is urged, however, for the appellee, that as the judge tried the facts of the case, his decision is not reversible. But this doctrine is confined to the action of the court as a trier of the facts as occupying only the position of a jury.' — Mims v. Sturdevant, 23 Ala. 664 . In the present case, the error' was not an erroneous conclusion upon the facts in evidence,' *451 but purely a mistake in relation to wbat the law was. It was precisely the same, in effect, as if he had charged the jury that the recovery for hire would defeat the appellant in his action for the injury.
Let the judgment be reversed, and the cause remanded.