Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Public Utilities Commission

Per Curiam. Appellant raises two propositions of law: (1) The order of the commission is against the weight of the evidence, and in light of the entire record is unlawful and unreasonable. (2) Since a landlord out of possession and control of the premises has no legal duty or obligation to make the premises safe and sanitary, the order of the commission requiring the appellant to eliminate the conditions on the grain company property has no basis at law and is unlawful and unreasonable. Upon appeal from an order of the Public Utilities Commission, the Supreme Court cannot consider any matter which had not been specifically set forth in an application to the commission for a rehearing. See Travis v. Pub. Util. Comm. (1931), 123 Ohio St. 355; Cincinnati v. Pub. Util. Comm. (1949), 151 Ohio St. 353; Marion v. Pub. Util. Comm. (1954), 161 Ohio St. 276; Queen City Valves v. Peck (1954), 161 Ohio St. 579; Conneaut Telephone Co. v. Pub. Util. Comm. (1967), 10 Ohio St. 2d 269; and R. C. 4903.-10.2 Since appellant did not raise the question of the weight of the evidence in its application for rehearing, we are barred from considering that issue at this time. However, independent of the weight of the evidence issue, we find no evidence authorizing the particular order issued by the commission. Appellant’s second proposition of law is that the order should not have issued, because the conditions complained of were not caused by appellant, but by an outside agency over which the appellant has no control. [85] Essentially, it appears to be the position of counsel for the commission that the commission has the authority specifically to direct appellant, as the owner of the fee, somehow to solve the problem, — even though appellant’s activities were not the cause of the conditions complained of; even though the grain company, at the direction of the Board of Health of the city of Cincinnati, had prior to the hearing engaged a pest control company in an attempt to solve the rodent problem; and even though it had installed new equipment in an effort to reduce the dust problem. The order does not state the manner by which appellant, an owner out of control of the premises, is to accomplish this. It should be observed that the order issued by the commission was not to the effect that appellant not send any of its employees into the area of potential hazard while such hazard continues, but was to the effect that appellant, itself, “immediately eliminate or cause the elimination” thereof. Upon an examination of the record, we conclude that the commission’s order directing appellant to immediately eliminate the rodents, maggots and undue dust is unreasonable and unlawful, and therefore the order of the commission is reversed. Order reversed. SCHNEIDER, HERBERT, CORRIGAN, STERN and LEACH, JJ., concur. O’Neill, C. J., and Brown, J., dissent. Footnotes [2] K. C. 4903.10 provides, in pertinent part: “After any order has been made by the Public Utilities Commission, any party who has entered an appearance in person or by counsel in the proceeding may apply for a rehearing in respect to any matters determined in said proceeding. *- t- * * * “Such application shall be in writing and shall set forth specifically the ground or grounds on which the applicant considers said order to be unreasonable or unlawful. No party shall in any court urge or rely on any ground for reversal, vacation, or modification not so set forth in said application.” (Emphasis supplied.)