(dissenting) .
I am unable to concur in the disposition made of this ease. The plaintiff was injured by the breaking of a dangerously defective “chafing block,” which is an appurtenance of the locomotive, within the meaning of the Federal Boiler Inspection Act (45 USCA § 23). The amended petition alleged this fact and specifically predicated plaintiff’s right of recovery thereon, as well as upon the Federal Employers’ Liability Act. Neither claim should he considered subordinate or ancillary to the other. To this petition the defendant answered to the merits, that is, it denied the applicability of the Federal Employers’ Liability Act, asserting that neither the plaintiff nor the defendant was engaged in interstate commerce at the time and in the train movement complained of; hut defendant merely denied generally the other allegations of the petition. Diversity of citizenship was also specifically alleged and is now admitted.
The question is not, and never was, therefore, one of jurisdiction, but of venue. The present complaint of the defendant is not that the federal courts, as such, did not have jurisdiction, for such federal jurisdiction appears both because of diversity of citizenship, and because of thei existence of a federal question. St. Louis, I. M. & S. Ry. v. Taylor, 210 U. S. 281, 293, 28 S. Ct. 616, 52 L. Ed. 1061. It is rather, that the action was brought in the wrong district. 28 USCA § 112 (Judicial Code, § 51). And this precise complaint, certainly as regai'ds the Boiler Inspection Act, is asserted here for the first time. It is not pleaded'. It is not made a part of the motion for a directed verdict. It is not included in defendant’s denial that the work being done was incidental to interstate commerce, for that defense is directed to the merits of but one branch Of the ease— to the right of recovery under the Employers’ Liability Act. Cf. Binderup v. Pathe Exchange, 263 U. S. 291, 44 S. Ct. 96, 68 L. Ed. 308.
It must, of course, he conceded as established law, that the Safety Appliance and Boiler Inspection Acts apply to all carriers doing an interstate business (the defendant is admittedly such a carrier), whether or not the employee was at the time engaged in work incidental to or a part of such commerce. Cf. Southern Ry. Co. v. U. S., 222 U. S. 20, 32 S. Ct. 2, 56 L. Ed. 72; Texas & P. Ry. Co. v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 60 L. Ed. 874; Napier v. Atlantic Coast Line, 272 U. S. 605, 607, 47 S. Ct. 207, 71 L. Ed. 432. The duty of compliance with the provisions of these acts is absolute. Louisville & N. R. Co. v. Layton, 243 U. S. 617. 620, 37 S. Ct. 456, 61 L. Ed. 931; Baltimore & O. R. Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419. The opinion of the majority of the court in this case recognizes that the plaintiff was “actionably injured,” and, indeed, this is apparent under the authorities, whether the right to a remedy be implied from the enactment of the Boiler Inspection Act alone (Texas & P. Ry. Co. v. Rigsby, supra), without aid from the provisions of the Federal Employers’ Liability Act; or whether the provisions of both acts are to be read in pari materia, and the whole given effect as though covering a singlo subject-matter. Cf. San Antonio & A. P. Ry. Co. v. Wagner, 241 U. S. 476, 484, 36 S. Ct. 626, 60 L. Ed. 1110; Great No. Ry. Co. v. Donaldson, 246 U. S. 121, 124, 38 S. Ct. 230, 62 L. Ed. 616, Ann. Cas. 1918C, 581; Baltimore & O. R. Co. v. Groeger, supra, at page 528 of 266 U. S., 45 S. Ct. 169, 69 L. Ed. 419. These cases recognize the existence of a federal question, and, as we have said, diversity of citizenship is admitted, as is also a cause of action in plaintiff; These statements are here made, and these eases are cited, only to emphasize the fact that the question is neither one on the merits, nor of jurisdiction, but of venue only.
Lack of venue, created by bringing an action in the wrong district, may be waived; and it is waived by failure of defendant to raise the question. Central Tr. Co. v. McGeorge, 151 U. S. 129, 14 S. Ct. 286, 38 L. Ed. 98; In re Moore, 209 U. S. 490, 501 et seq., 28 S. Ct. 706, 52 L. Ed. 904, 14 Ann. Cas. 1164; General Inv. Co. v. Lake Shore Ry., 260 U. S. 261-263, 43 S. Ct. 106, 67 L. Ed. 244; Panama R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748; Burnrite Coal Co. v. Riggs, 274 *394U. S. 208, 211, 47 S. Ct. 578, 71 L. Ed. 1002. Why then was it not waived here? It is said that the plaintiff has not urged the waiver. That is wholly unnecessary. The waiver results from the failure of the defendant to raise the question, be it by pleading and going to trial upon the merits, or otherwise, not from the position taken by the plaintiff. Furthermore, the plaintiff has urged that the court had both venue and jurisdiction, and in this, the plaintiff’s position was sound, certainly so, I feel, after trial had been concluded upon the merits.
. It is also said that this court should not reverse upon a point not urged in the court below. But proper exception upon the pertinent ground last above stated was taken by the plaintiff to the action of the court in directing a verdict for defendant. This suffi.«iently saves the question. But even .if this were not so, the case would seem to me to be one of obvious error in confusing the questions of venue, of the merits of the action under the Federal Employers’ Liability Act, and of jurisdiction of the federal courts. Under such circumstances, and in view of the admitted liability of the defendant, and the serious doubt whether the action could again be tried elsewhere because of the two-year limitation (probably applicable, I think), and the further fact that a full trial upon the merits had once been concluded, albeit the defendant had secured a directed verdict in that trial upon Untenable grounds, the case is one in which the court should protect the rights of the litigant without regard to technicality or the shortcomings of coun'seh The rights of litigants should be our prime consideration, not the care, qualifications, and skill of counsel in saving a question upon the record. Nor would this be applying a technicality on behalf of plaintiff, while denying the same right to defendant, for, the cause of action and the jurisdiction of the court being admitted, the right to a judgment is a matter of substance, the enforcement of an admitted right, and the objection that such right should be enforced in one place rather than in another, is alone the subject of technicality.
■ Lastly, it is said that “the best that can bé said for plaintiff, on the question of waiver, is that its presence is not plain,” and that '“the trial court was of the opinion that venue had not been conceded, impliedly or otherwise, by the defendant.” Neither could, in my opinion, be further from the legal fact. The eases above cited lay down the doctrine, clearly, ¿nd unequivoeally, that defect in venue is waived by pleading to, and trial upon, the merits, or by mere failure of the defendant to raise the question. Here the defendant both joined issue upon the merits of the ease under the Boiler Inspection Act and went to and completed the trial without raising objection to venue, unless and until, possibly, in the argument of counsel (not made part of the record) upon the motion for an instructed verdict. Even had the question been raised by such motion, it would have come too late; but it does not appear to have been even thus raised. Nothing prevented the defendant at the very inception of the case from pleading lack of venue in so far as the action was bottomed upon the Boiler Inspection Act, even if such defense to the suit'were made conditioned upon failure of plaintiff to sustain his action under the Federal Employers’ Liability Act. Not having done so, the right to raise the question at the conclusion of the plaintiff’s case was gone, or, if the right then remained, it was just as conclusively then < lost by failure to promptly raise the question.
Nor is the opinion of the trial court upon this question of moment. If the portion of that opinion referred to shows anything, it shows that the question of venue never entered the mind of the trial judge, much less the question of waiver, and the distinction between dismissal for want of jurisdiction or upon the' merits. The matter was treated exclusively as raising a question of jurisdiction, and the holding was that the “court is without jurisdiction,”—that the plaintiff was for this reason relegated to another forum.
If it be urged that the. court unquestionably had venue of the cause of action asserted under the -Federal Employers’ Liability Act, that venue of the cause of action under the Boiler Inspection Act thereupon attached as incidental, but continued only so long as the first cause of action remained justiciable, and that, when it fell through want of proof of engagement in interstate commerce, it was then open to defendant for the first time to raise the question of venue, it is sufficient answer, as already suggested, first, that the record does not show that the defendant at any time questioned the venue of the court, and this alone is enough to constitute waiver; and, secondly, that the two grounds of recovery were both integral parts of the same petition, that failure to prove engagement in interstate commerce went to the merits of the one ground of recovery or cause of action, and justified a directed verdict and final judgment for the defendant thereon, but that such verdict could be directed only upon a submitted case, *395after trial; and sueh. trial upon the merits, without at least some formal reservation of the right to question the verme of the court, is also, in and of itself, a waiver of that right.
To me, the ease is one of inadvertent error in the trial court failing to perceive the existence of a question which should have been seen, defeating a clear right of recovery in the present action, and jeopardizing, to say the least, plaintiff's rights in any subsequent action. Por this reason I think the judgment should be reversed, and the cause remanded for trial.