The .appellant's sole assignment of error is to the muling of the count -below dismissing plaintiff’s action for the reason that -the complaint fails to state that the insured “gave notice of the 'accident 'and failed ¡to give notice of the .suit ¡against him, which accident ¡and suit constitutes the basis of plaintiff’s claim against the defendant -herein,” and the .entry of judgment in accord with said ruling.
The provisions of our Motor Vehicle Safety ¡and Financial Responsibility Act, Article 9A, Chapter 20, ¡of our General Statutes1, provide for motor vehicle insurance carriers to issue two- types of motor vehicle liability policies. “One is an owner’s policy, which insures the holder against legal liability for injuries to others arising out of the ownership, uise or operation of a motor vehicle owned -by him; and the other is an operator’s policy, which insures ¡the holder against legal liability for injuries to others arising out of the use by him of a motor vehicle not owned by him.” Howell v. Indemnity Co., 237 N.C. 227, 74 S.E. 2d 610; G.S. 20-279.21 (a) (b) and (c).
The policy involved herein is an owner’s policy. It was issued to Holbrook pursuant to the assigned risk ¡statute of North Carolina, in which the defendant insurer obligated itself to pay any liability Hol-brook should ¡become liable to. pay by reason of tire operation of the Ford automobile described in the policy, up to the limit of $5,000. G.S. 20-279.21 Ob) (2).
No violation of the provisions of an owner’s policy as an assigned risk, will void the policy where the liability thereunder has been incurred by reason of the insured’s operation of the automobile described in the policy. G.S. 20-279.21 (f) (1); Swain v. Insurance Co., 253 N.C. 120, 116 S.E. 2d 482.
G.S. 20-279.21 (g) reads as follows: “Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of ox in addition to the .coverage specified for a motor vehicle liability policy .and ¡such excess or additional coverage shall not be subject to the provisions of this article. With respect to a policy whidh grants ¡such excess or additional coverage the term 'motor vehicle liability policy’ shall apply only to that part of the coverage which is required by this section.”
Our Financial Responsibility Act does not require an owner's- assigned risk policy to- cover any liability except «that growing out of the operation of the motor vehicle described in tire policy. Consequently, the coverage in the policy issued by the -defendant to- Holbrook with *727respect to the use of other automobiles', was in addition to the coverage required by our Motor Vehicle Safety -amid Financial Responsibility Act. Therefore, with respect to such coverage, the policy makes the giving of notice a condition precedent to insurer’s liability. “Prior- and subsequent to the decision in the MacC'lure ease (229 N.C. 305, 49 S.E. 2d 742), this Court has consistently iheld that plaintiff has the burden of showing that he (has complied with those conditions precedent to his right to maintain his action.” Muncie v. Insurance Co., 253 N.C. 74, 116 S.E. 2d 474.
The plaintiff in this action has no greater right against the defendant insurer than Holbrook, the insured, would have. Any failure of Holbrook to give notice defeating his light to indemnity under the provision with respect to the uise of other automobiles, would likewise prevent plaintiff from asserting any rights under this provision of the policy. Muncie v. Insurance Co., supra.
We hold that the motion interposed and allowed in the court below, was tantamount to a demurrer on (the ground that the complaint did not istate a cause of action against the defendant. Even so, under our decisions, we hold that it was 'error to dismiss the action. The plaintiff is entitled to amend his complaint, if so advised. Leggett v. Smith-Douglass Co., 257 N.C. 646, 127 S.E. 2d 222, and cited cases.
Except as modified herein, the judgment entered below is affirmed.
Modified & affirmed.