DR. MARTIN O. MILLER

v.

TENNESSEE GAS TRANSMISSION COMPANY

. In other parts of its opinion, this Court said:

“ * * * that case (referring to Dim-ick v. Schiedt, supra), decided as it was by a closely divided court, is authority only for its own facts, and those facts are not present here. Those facts as shown by the opinions of the Circuit Court of Appeals, and of the Supreme Court, were that the trial was attended with serious error for which a new trial ought to have been granted at common law, and the holding was that though Federal decisions had furnished a precedent for curing such errors by remittitur when the verdict was not the result of passion or prejudice, there were no authoritative precedents, either English or American, for curing them by additur.” 99 F. 2d at pages 833, 834.

“The case stood below and stands here, then, as one in which the record shows an errorless trial, and no right in the Association therefore, at common law, to have a new trial granted.

“Cross appellants are thus in the position of complaining of a judgment which gave them more than they could claim under the verdict, a matter not at all to their injury, but greatly to their advantage. Under these circumstances, wo think it inescapable that the rule of Dimick v. Schiedt, announced in, and applied to, a trial in which at common law a new trial ought to have been granted for error, is wholly without application here.” 99 F. 2d at pages 834 — 835.

. “Except as conferred by some statutory enactment, or perhaps where the ground of application is error of law, a new trial is not a matter of right, although there may exist cause for new trial * * 39 Am.Jur., New Trial, Sec. 13, p. 39.

“ * * * the common law power of the trial judge to grant a new trial in his discretion, irrespective of error and merely because he does not think the verdict right, is fully preserved. Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 7 L.Ed. 732.” Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F. 2d 498, 409.

. “A motion for new trial is addressed to the trial judge’s discretion. lie may grant a new trial if lie thinks he has committed error ; and he may grant one (and he alone can) because he thinks the verdict is wrong, though supported by some evidence. The exercise of his discretion is not ordinarily reviewable on appeal, though a failure to exercise discretion, or an abuse of it, may be corrected.” Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F. 2d 498, 500.

When the trial court abuses its discretion, that amounts to a legal error and may be reviewed as such. Virginian Ry. Co. v. Armentront, 4 Cir., 106 F. 2d 400, 407, 408, 4 A.L.R.2d 1064; 6 Moore’s Federal Practice, 2nd. ed., Para. 59.08 (G), p. 3827, Notes 29 and 30.

. See Whiteman v. Pitrie, 5 Cir., 220 F. 2d 914, No. 15260, decided Mar. 22, 1955.

. Judge Borah cites Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520, where, as to discretion generally, it is said:

“The term ‘discretion’ denotes the absence of a hard and fast rule. The Sty-ria v. Morgan, 186 U.S. 1, 9, 22 S.Ot. 731, 46 L.Ed. 1027. When invoked as a guide to judicial action, it means a sound discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.”

. On the binding effect on lower federal courts of a five to four decision of the Supreme Court, see Penfield Co. of California v. Securities & Exchange Commission, 9 Cir., 143 F. 2d 746, 154 A.L.R. 1027; Dichmann, Wright & Pugh v. Weacle, 4 Cir., 168 F. 2d 914, 916; 14 Am. Jur., Courts, Sec. 84.

. Appellee makes no contention that the judgment can be sustained on the ground that the liability was admitted and the amount of damages not in dispute. (See the reference to the district court’s opinion in 6 Moore’s Federal Practice, 2nd ed., Para. 59.05(4), p. 3755, Note 14). Actually, the plaintiff’s witnesses placed the cost of doing the necessary restoration work at from $41,580 to $43,000.

. Rule 63, F.R.C.P., makes provision for another judge to perform the duties in this respect to be performed by the court, in the event the judge before whom the action was. tried should be unavailable.