dissenting.
I must respectfully dissent, because the plaintiff is unable to demonstrate any state of facts justifying a recovery under this count of her complaint. OCGA § 9-11-12 (c).
As the majority acknowledges, a policy obtained without the knowledge and consent of the insured is void ab initio as against public policy. OCGA § 33-24-6 (a); Wood v. N.Y. Life Ins. Co., 255 Ga. 300, 303-304 (336 SE2d 806) (1985); Time Ins. Co. v. Lamar, 195 Ga. App. 452, 453-454 (393 SE2d 734) (1990). This principle of public policy cannot be waived, nor can it be eliminated by estoppel. “Regardless of the legal theory used, such a contract is not subject to being enforced by the courts. To reach a contrary conclusion would permit the unreasonable result that the conduct of an insurance company or its agent would breathe life into an insurance contract which the General Assembly for reasons of individual and public protection intended to have no life, and would frustrate the strong public policy that no contract for life insurance should be made unless the insured applies for or consents in writing to the contract. This we decline to do.” (Citations and punctuation omitted.) Lamar, supra at 455.
Plaintiff cannot circumvent this well-established law merely by recasting her complaint into terms of fraud. The claim, though couched in terms of fraud, remains based on an insurance contract that is void ab initio as violative of public policy. No duty was owed to plaintiff outside the terms of the contract itself. The only possible measure of damages would be based entirely on the contract. “One cannot do indirectly what the law does not allow to be done directly. [Cit.]” Phillips v. MacDougald, 219 Ga. App. 152, 153 (2) (a) (464 SE2d 390) (1995). In Talley v. Mathis, 212 Ga. App. 330 (441 SE2d 854) (1994), rev’d on other grounds, 265 Ga. 179 (453 SE2d 704) (1995), we held that a plaintiff could not recover on an illegal gambling contract by recasting his complaint in terms of fraud: “although Talley asserts fraud and conversion claims, the entire case is premised upon the agreement between the parties. . . . Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. . . . The very essence of the agreement here was to do that which was prohibited by Georgia law and accordingly, the trial court’s order was proper.” (Citations, punctuation and emphasis omitted.) Id. at 332-333. While the Supreme Court reversed our judgment, it did so on the basis that the contract was not illegal and void, but merely an agreement to engage in legal wagering in another state’s officially sanctioned lottery. 265 Ga. at 180 (2).
For these reasons, I respectfully dissent.
I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.
*820Decided March 20, 1998 Reconsideration denied April 1, 1998 Murray & Stewart, Larry E. Stewart, for appellant. Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Linda J. Pollock, for appellee.