concurrence">HERGET, J.

(concurring).

The majority, in its conclusion, relying on the case of Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149, observes:

“We fail to see where the Judge of the Lower Court has abused his discretion in fixing the awards in this case and therefore the judgment of the Lower Court is affirmed.”

To me the paralogism of the conclusion of the majority in the Gaspard case is made evident from a simple reading of the Constitution of Louisiana. LSA-Const. Article 7, § 10, vests jurisdiction in the Supreme Court in this language :

“In civil cases, its appellate jurisdiction extends to both the law and the facts. * * *” (Emphasis mine),

and LSA-Const. Article 7, § 29, endows the Courts of Appeal with jurisdiction, the pertinent part providing:

“All appeals of which the courts of appeal have appellate jurisdiction as provided in this Section shall be on both the law and the facts, except where the appeal is limited to questions of law only by any other Section of this Constitution.” (Emphasis mine).

Though mindful LSA-C.C. Article 1934 paragraph 3 — the legislative enactment as to the monetary awards in damage suits— in part provides:

“ * * * much discretion must be left to the judge or jury, * * * ”,

under the excerpts of the Constitution, quoted supra, no restrictions are placed upon rights of litigants in Louisiana to appeal on both the law and the facts. Litigants are granted unlimited right of appeal. The appellate court vested with jurisdiction is obligated to give consideration to this unlimited right of appellant and render its judgment accordingly, applying the law to the facts as determined' by it.

Whether the basis for the fixation of awards for damages in suits be categorized as one of fact or one of law, certainly such conclusion falls within one of these categories. In consequence of which the obligation under the Constitution is squarely placed upon the appellate judges to decree what in their opinions are the proper judgments on the issues raised both on the law and the facts.

If, in any way, the Civil Code Article, supra, restricts to any extent the constitutional rights granted to the litigant, same is unconstitutional.

From my review of the record in this case, I am in accord with the assessment of damages awarded by the Trial Court.

For these reasons, I respectfully concur in the opinion of the majority of this Court affirming the judgment of the Trial Court.

Citation profile

Relationships

How this case has been treated — in progress