
    [No. 19729.
    Department Two.
    April 2, 1926.]
    Marie Allen, Respondent, v. Anna Hannaford, Appellant.
      
    
    
       Landlord and Tenant (118) — Lien for Rent — Property Lien-able. Rem. Comp. Stat'. § 1203-1 expressly provides that a landlord shall have no lien for rent upon the property of tenants in an apartment house used exclusively as a home or residence of the tenant.
    
       Assault and Battery (A-l) — Civil Liability — What Constitutes Assault. It constitutes an assault to point a pistol at another threatening to shoot, even though such person may not know whether it is loaded or not.
    
       Same (5) — Damages—Amount Awarded. A verdict for $750 for assault by pointing a pistol at plaintiff and threatening to shoot, held not excessive in view of its immediate effect and the nervous condition thereafter resulting.
    Appeal from a judgment of the superior court for King county, Honorable John S. Jurey, judge pro tempore, entered June 20, 1925, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages.
    .Affirmed.
    
      I. E. Randolph (Crandell & Grandell, of counsel), for appellant.
    
      Van C. Griffin, for respondent.
    
      
      Reported in 244 Pac. 700.
    
   Main, J.

By this action, the recovery of damages is sought for assault. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $750. Motions for judgment notwithstanding the verdict and a new trial being made and overruled, judgment was entered upon the verdict, from which the defendant appeals.

The appellant was the owner and operator of the Argonne Apartments in the city of Seattle. Bespondent, for approximately a year prior to April 29, 1924, liad been a tenant in one of tbe apartments. ' On this day, tbe respondent bad made arrangements to move to another apartment house. "When tbe transfer men came after ber furniture, tbe appellant appeared on the scene with á pistol in band and threatened to shoot them full of boles, if they moved a single article belonging to tbe respondent. Soon thereafter, standing only a few feet from the respondent, she pointed the pistol at ber face and threatened to shoot ber. Tbe appellant admitted that she bad a pistol in ber band, but denied that she pointed it at tbe respondent and threatened to shoot. Subsequently tbe present action .was begun.

Tbe appellant claims that she bad a lien for tbe rent which was then due from tbe respondent and unpaid and therefore bad a right to prevent tbe removal of the property from tbe premises. In tbis connection, rebanee appears to be made upon Rem. Comp. Stat., § 1203-1, which covers generaHy tbe matter of liens for rent. Tbe concluding sentence of tbe section, however, is:

“Tbe provisions of tbis act shall not apply to, nor shall it be enforced against, tbe property of tenants in dwelling-houses or apartments or any other place that is used exclusively as a home or residence of tbe tenant and bis family.” „

In what manner a landlord having a lien might prevent tbe removal of property, if be has such right, is not involved in tbis case and no opinion is expressed thereon.

It is further contended that there is no showing that the pistol, which tbe appellant bad in ber band wben the assault was made, was loaded, and from this it is argued that, without such showing, a cause of action sufficient to go to the jury is not made out. From the .evidence as above indicated, the jury had a right to find that the appellant pointed the pistol at the respondent and threatened to shoot. So far as the respondent was concerned the appellant had the apparent ability to make her threat good. In Beach v. Hancock, 27 N. H. 223, it was said:

“One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly inore precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it surely is not unreasonable for a person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The business of the world could not be carried on with comfort, if such things could be done with impunity.”

Whether there is an assault in a given case depends more upon the apprehensions created in the mind of the person assaulted than upon what may be the secret intentions of the person committing the assault. In Howell v. Winters, 58 Wash. 436, 108 Pac. 1077, it was said:

“The presence or absence of an assault depends more upon the apprehension created in the mind of the person assaulted than upon the undisclosed intentions of the person committing the assault.”

If the appellant pointed the pistol at the respondent and threatened to shoot this would constitute an assault, even though the respondent may not have known whether it was loaded.

Lastly, it is contended that the verdict is excessive, hut this contention cannot he sustained. In Winston v. Terrace, 78 Wash. 146, 138 Pac. 673, a verdict of $2,000 was upheld where the defendant, at the point of a pistol, drove the plaintiff out of her home. The assault in that case may have been more aggravated than in the present one, but the verdict also was very much larger. In Burger v. Covert, 75 Wash. 528, 135 Pac. 30, Ann. Cas. 1915C 81, it was said:

“Manifestly, the injury received by a person assaulted by another is not necessarily all physical. The mental distress of the assaulted person may be, and often is, a very material portion of the injury flowing from such a wrong. That this portion of the injury is more or less aggravated by the accompanying words and demeanor of the one making the assault, must be apparent to all. To' measure his damage by such a standard is not allowing him punitive or exemplary damage, but only allowing him compensation for injury actually received.”

In the case now before us, there was evidence as to the immediate effect upon the respondent of the pointing of the pistol at her, with the threat to shoot, and her nervous condition thereafter as a result thereof.

The judgment will be affirmed.

Tolman, C. J., Mitchell, Parker, and Mackintosh, JJ., concur.  