dissenting.
I respectfully dissent from the majority opinion. The purpose of KRS 372.010 is to prevent illegal gambling by rendering void and unenforceable the gambling contract itself and certain related agreements. In McDevitt v. Thomas, 130 Ky. 805, 114 S.W. 273 (1908), this Court held that “[t]he *950purpose of [KRS 372.010] is to discourage betting or wagering by declaring all contracts relative thereto void, and by this means lessen what is generally regarded as a social evil.” Although KRS 372.010 remains on the books, the “social evil” discouraged in the first decade of this century is viewed in a different context in the last decade of this century. For example, in the past decade, amendments to the Kentucky Constitution have permitted a state lottery and charitable gaming. Statutory additions and amendments in 1992 legalized pari-mutuel wagering on horse racing at simulcast facilities per KRS 230.380. Further, use of credit cards for betting via telephone lines and credit card cash advances via automated teller machines have been authorized. The social evil that KRS 372.010 was designed to curb was gambling, an illegal activity at the time of the statute’s enactment, not money lent for a legal activity. It is preposterous that while it is legal to place a pari-mutuel wager on a horse race at an authorized facility, and it is legal to loan money, it is illegal to loan money to someone to place a legal wager on a horse race in this Commonwealth.
Further, in today’s society a check presented is equivalent with cash. By accepting a personal check as payment for goods and services, KOTB did not make a loan to McBurney. KOTB accepted McBurney’s personal check as a payment in good faith, believing that the checks would be honored when presented to the financial institution. Only after McBurney approached KOTB to inform it that the checks would not be honored due to insufficient funds, did McBurney intimate that he would enter into a promissory agreement to pay more than $350,000 to cover the bad checks. It is likely that McBurney entered into this agreement to avoid prosecution for writing the bad checks.
There is no evidence in the record that KOTB made any agreement to loan or advance money, or even advance credit “at the time of any betting, gaming, or wagering” to McBurney who was then engaging in betting. The majority opinion presumes, although not supported by the record, that the parties agreed to loan contemporaneously, with McBurney placing his ill-fated, but legal bets.
For the foregoing reasons, I respectfully dissent.
STUMBO, J., joins this dissent.