The opinion
ON MOTION TO REHEAR
The plaintiff has filed a motion seeking a reconsideration of the Court’s action overruling the plaintiff’s motion for new trial and in particular the Court’s action in overruling the ground in the plaintiff’s motion alleging that error was committed by the Court having ordered a trial of the issue of liability separate from and prior to the trial of the issue of damages. The plaintiff’s motion is based upon the recent case of Winters v. Floyd, Tenn.App., 367 S.W.2d 288 , wherein the Tennessee Court of Appeals held that the action of a trial court in ordering a separate trial of a plea of accord and satisfaction in a tort action was error. The decision of the Court was expressly based upon the case of Harbison v. Briggs Bros. Paint Manufacturing Co., 209 Tenn. 534 , 354 S.W.2d 464 , which case in turn was fully considered and discussed in the former opinion of the Court in this case. For the reasons stated in the former opinion the Court remains of the opinion that neither the Winters ease nor the Harbison case could operate to overrule and invalidate in the federal courts of this state Rule 42(b), Federal Rules of Civil Procedure, 28 U.S.C.
*340 The motion to reconsider will be overruled. An order will enter in accordance with the former opinion of the Court overruling the plaintiff’s motion for a new trial and in accordance with this opinion.