This is аn appeal from an order denying appellants’ Motion for New Trial following a jury verdict in favor of appellee Moose Lodge # 86. Appellants contend that they are entitled to a new trial because the court below erred in two regards: the trial judge failed to charge the jury on the presumption of intoxication set forth in the Pennsylvania Motor Vehicle Code (75 Pa.C.S. § 1547(d)(3)); and, the trial judge failed to ascertain that the jury’s verdict was clearly against the weight of the evidence. We find that appellants’ contentions have no merit and, therefore, affirm the court below.
Appellant John Suskey went to appellee’s bar at about 7:00 p.m. on November 19, 1975. There was evidence that he consumed three double shots оf whiskey, followed by beer chasers and then drank beer until he left at approximately 12:30 a.m. Shortly after he left appellee’s bar, he *97 was involved in a collision when he drove into a truck parked in a used car lot adjacent to Route 30. Suskey suffered serious physical injuries. Subsequently, he and his wife brought this action on the basis that appellee violated the Dram Shop Act, 47 P.S. § 4-493(1), when it served him intoxicating beverages while he was visibly intoxicated.
The Dram Shop Act provides that:
“It shall be unlawful
“(1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated ...” 47 P.S. § 4-493(1) (Emphasis added)
It is undisputed that Moose Lodge # 86 is a licensee of the Pennsylvania Liquor Control Board. The issue below was whether appellant John Suskey was served intoxicating beverages at the Lodge while “visibly intoxicated.”
Appellants contend that under Pennsylvania lаw, the jury should have been instructed that a blood alcohol percentage of greater than 0.10 creates a presumption that the individual was under the influence of alcohol, 1 The court below did instruct the jury that the breathalyzer result was 0.19 one hour after the accident, and thаt they might consider such in determining whether Mr. Suskey was visibly intoxicated. However, the court refused to include appellants’ proposed addition to that point for charge which would have instructed the jury that under the Pennsylvania Motor *98 Vehicle Act, 2 if the amount of the alcohol by weight in the blood of the person tested is 0.10 per cent or more, it is presumed that the person was under the influence of alcohol.
We agree with the trial court that appellant was not entitled to a charge on this presumption. It is true that in criminal actions for driving under the influence of alcohol, the breathalyzer result, as well as its correlative presumption . must be charged to the jury. 3 However, we *99 believe that neither authority nor logic dictate the use of the presumption in the рresent circumstances.
Appellant argues that a breathalyzer result, without the presumption of intoxication resulting therefrom, is meaningless to the jury, and therefore cannot be given adequate consideration. We concede that а breathalyzer result standing alone, is arguably of no help to a jury in its determination of whether a plaintiff was visibly intoxicated. It may be that an expert who could relate the degree of blood alcohol to visible intoxication at an earlier hour would be evidentiary assistance. However, being “under the influence” and “visibly intoxicated” relate to different characteristics of ability and control as opposed to appearance.
In
Billow v. Farmer’s Trust Co.,
There are two cases which have been read by appellant to suggest the presumption is required.
Couts v. Ghion,
We find that appellants’ argument, which effectively reads the Motor Vehicle Act into the Dram Shop Act, is unconvincing. The language of § 1547(d) is specifically related to criminal actions for driving under the influence of alcohol. Furthermore, Pennsylvania law does
not
mandate that the presumption of intoxication be charged in cases not involving the competency of a person to operate a motor vehicle. Appellant incorrectly cites
Couts v. Ghion,
“Even if Ghion was intoxicated at the time of the accident and his intoxicatiоn proximately caused decedent’s death, Holiday House cannot be held liable unless Ghion was visibly intoxicated when served at the Holiday House bar.” 281 Pa.Superior Ct. 141,421 A.2d at 1187 (Emphasis added).
The Couts decision advocates the use of the breathalyzer test result as relevаnt circumstantial evidence only to be used in conjunction with other evidence which bears on the question of whether an individual was visibly intoxicated. 4 However, Couts, while favoring the admission of the breathalyzer results, does not mandate the usage of the presumption. The Cusatis court advocates the admission of a breathalyzer test as relevant evidence in conjunction with other evidence going to an individual’s competency in the operation of a motor vehicle. Thus, neither case advoсates the use of the breathalyzer result in charging a presumption, under the law, going to visible intoxication. We feel that the court below fully followed the spirit of Couts, supra and Cusatis, supra, by allowing the jury to use the breathalyzer results as evidence, in conjunction with other evidence, to determine whether the appellant, John Suskey, was visibly intoxicated. We find no error in refusing to fully charge with respect to Point for Charge # 8, and, therefore, find appellants’ argument meritless.
Appellants’ second contention of errоr is that the verdict was against the weight of the evidence.
This contention concerns the factual determination, made by the jury, of whether John Suskey was served intoxicating beverages while visibly intoxicated. Of course, a wit *102 ness’ impression of whether a рerson is visibly intoxicated is a subjective one; it depends on the witness’ perception. In the instant case, there was conflicting testimony by witnesses who observed John Suskey as to whether he was visibly intoxicated. The resolution of the conflicting testimony wаs a question of fact for the trier of fact, the jury. The jury found that the appellant was not served intoxicating beverages while he was visibly intoxicated. Its finding is supported by the record.
As stated in
Kline Cooperage v. Kistler,
Our Supreme Court has held that a new trial should be granted only where the vеrdict is so contrary to the evidence as to shock one’s sense of justice. Burrell v. Philadelphia Electric Co.,438 Pa. 286 ,265 A.2d 516 (1970). [The plaintiff] is not entitled to a new trial where the evidence is conflicting and the jury could have decided either way. Hilliard v. Anderson,440 Pa. 625 ,271 A.2d 227 (1970).
The court below charged the jury to consider direct and circumstantial evidence, and to disregard the fact that the appellant, John Suskey, might have been negligent in ordering and consuming the amount of alcohol that he did. The jury was properly charged to consider only whether Mr. Suskey was served intoxicating beverages while visibly intoxicated. The result was that the jury found against appellants.
We do not feel that the court below erred in finding that the verdict was supported by the evidence. In addition, the verdict is not “so contrary to. the evidence as to shock one’s sense of justice.”
Id.,
286 Pa.Superior Ct. at 87,
Order affirmed.
Notes
. The disputed Point for Charge # 8 appeared as follows:
In determining whether or not Mr. Suskey was visibly intoxicated when servеd at the defendant’s place of business, you may consider the results of the blood alcohol test taken while he was still in the emergency room at McKeesport Hospital. [Under the Pennsylvania Motor Vehicle Act, if the amount of alcohol by weight in the blood of the person tested is 0.10 percent or more, it is presumed that the person was under the influence of alcohol.]
The bracketed section is that which appellant wished to add to the charge.
. 75 Pa.C.S. Section 1547(d) provides as follows)
(d) Presumptions from amount of alcohol. — If chemical analysis of a person’s breath or blood shows:
(1) That the amount of alcohol by weight in the blood of the person tested is 0.05% or less, it shall be presumed that the person tested was not under influence of alcohol and the person shall not be charged with any violation under section 3731(a)(1) (relating to driving under influence of alcohol or controlled substance), or if the person was so charged prior to the test, the charge shall be void ab initio.
(2) That the amоunt of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other cоmpetent evidence in determining whether the person was or was not under the influence of alcohol.
(3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, it shall be presumed that the defendant was under the influenсe of alcohol.
. Pennsylvania law mandates that the presumption be charged in cases dealing with criminal operation of a motor vehicle while under the influence of alcohol. We note, however, that this "presumption” is in fact оnly a permissible inference.
Commonwealth v. DiFrancesco,
However, even in cases involving criminal charges, there has been skepticism and criticism regarding the use of the breathalyzer result and presumption.
See Commonwealth v. Tylwalk, 258
Pa.Super. 506,
. We note that
Couts v. Ghion, supra,
was a plurality decision.
But cf. Billow v. Farmer’s Trust Co.,