The defendant appeals from a summary judgment in favor of plaintiff. The complaint alleges that on or about April 30, 1965, the defendant issued a binder to the plaintiff on a boat owner’s policy of insurance and thereafter issued said policy to plaintiff, and that on or about May 2, 1965, the insured boat struck a submerged object in Utah Lake and sank. It further alleged that the defendant was duly notified of the loss but refuses to pay according to the terms of the policy of insurance.
The defendant’s answer is a general denial. In answer to requests for admissions the defendant admitted the execution of the binder and the delivery of the policy. The plaintiff’s deposition was taken by the defendant.
The plaintiff filed a motion for summary judgment for the relief demanded in his complaint and attached to the motion an affidavit wherein he stated under oath substantially the same things which he had alleged in his complaint.
The defendant filed an opposing affidavit as follows:
*385Keith Laníbourne being first duly-sworn upon oath deposes and says:
1. That he is a Property Claims Supervisor for the Allstate Insurance Company, the defendant named in the above entitled action.
2. That the defendant was not notified by the plaintiff of his claimed loss which allegedly occurred on May 2, 1965 until May 17, 1965 at which time the said LaVar C. Fox filed a written report of the alleged loss with the defendant, Allstate Insurance Company.
3. After the report of the alleged loss was furnished to the defendant by the plaintiff, representatives of the defendant went to the site on Utah Lake where plaintiff claimed his boat had sunk and in the presence and with the assistance of the plaintiff conducted a methodical search of the entire area where the boat had allegedly sunk, but no signs of the sunken craft were ever found, and no indications were found that there was a sunken craft in the area where the plaintiff indicated to the defendant his craft had sunk.
4. That on numerous occasions since the alleged loss of the plaintiff’s boat, representatives of the defendants have made repeated requests for the plaintiff to produce proof of ownership of the boat that was allegedly sunk but the plaintiff has failed and refused to produce proof of said ownership.
5. On several occasions the plaintiff has refused to furnish information to the defendant regarding the facts of the accident, and on June 25, 1965 the plaintiff physically interfered with the defendant’s investigation of the loss when the defendant was attempting to talk with the plaintiff’s father, who’s [sic] residence the plaintiff claimed he had stored his boat prior to its being sunk, and after the plaintiff’s father had advised your affiant that he knew nothing about the existence of such a boat or his son’s ownership of same, and was about to sign a statement to that effect the plaintiff physically took the paper from his father, tore it up, and refused to give it to your affiant.
6. Defendant has refused to make payment for the loss of said boat due to the fact that the plaintiff has failed to meet the conditions of the policy he claims to have with the defendant, has failed to prove that he had an insurable interest in the boat which was allegedly lost.
7. Due to the plaintiff’s failure and refusal to cooperate and to present proof of ownership and proof of loss, the defendant has refused, and still refuses to make any payment of any kind on the grounds and for the reason that the plaintiff has failed and refused to show that he had an insurable interest, and that he suffered any *386loss in the event he had an insurable interest.
The plaintiff claims that the affidavit filed by defendant shows on its face that it is incompetent because it “is based on hearsay,” and thus under Rule 56(c), U.R. C.P., it does not meet the positive allegations of plaintiff’s affidavit.
In the first place, the plaintiff is in error in claiming that the statements in the affidavit are based on hearsay information. He confuses the hearsay rule with another rule of evidence which is to the effect that a party testifying must have an opportunity to know that about which he testifies. On voir dire examination it might be made to appear that the affiant was one of the representatives of the defendant and that he was present at all times mentioned in his affidavit. Even if it was made to appear that he was not present, the objection would not be one based on hearsay but rather on a lack of opportunity to know whereof he spoke. See McCormick on Evidence, § 226 at page 461.
By failing to move to strike the affidavit of Lambourne, the plaintiff waived the right to show whether the affiant knew first handed that about which he deposed.
In discussing this problem, Professor Moore states the following:
An affidavit that does not measure up to the standards of 56(e) is subject to a motion to strike; and formal defects are waived in the absence of such a motion or other objection.1
In regard to the statements in the paragraph numbered 5 of Lambourne’s affidavit, if the son was present and heard his father state that he (the father) knew nothing about a boat being stored at his place, .then there would be an exception to the hearsay rule, since such a statement would be made under circumstances which would naturally call for some response from the plaintiff. It seems rather obvious that the plaintiff did hear and understand what was being said, and the statement in paragraph 5 of the affidavit is admissible as showing what the reaction of the plaintiff was in trying to prevent the defendant from ascertaining the truth of the matter.
Whether or not the affidavit of Lam-boume is defective is not a serious matter in this case for the reason that the plaintiff in his deposition testified to many of the same things which are in the affidavit.
A synopsis of his testimony in his deposition is as follows:
1. He bought a 17-foot inboard-outboard Glasspar boat from a total stranger.
*3872. He does not know where the boat was last registered.
3. He paid $2200 cash to the stranger but got no bill of sale.
4. His wife did not know about his buying the boat.
5. He had secreted the cash at home in a tin box for nearly a year, the amount of cash being unknown to his wife.
6. He and the stranger transferred the boat in a parking lot of a shopping center from one trailer to another by themselves and without any help.
7. On April 30, 1965, he had the boat insured for $2,000.
8. Two days later, on May 2, 1965, he took the boat to Utah Lake, where he launched it by himself with no one being present to witness the act.
9. He drove the boat a few miles out to Bird Island, where he felt it strike an object, although no water came into the boat until later during a' windstorm.
10. Almost immediately after striking the object with his boat, he noticed that the wind had increased greatly, and waves three or four feet high were beating against his boat.
11. The boat dropped front first into the trough between two waves and disappeared.
12. Although a 17-foot boat could. not remain afloat, the plaintiff was able to swim safely to shore, a distance of from one half to one mile.
13. The plaintiff made no report of the loss of his boat until three or four days later, when he contacted a representative from the Utah Park Commission.
14. The plaintiff and representatives from the defendant’s office searched the lake where the boat went down and covered the whole area of the lake in an efficient manner but found no boat.
15. At all times after he bought the boat and until he took it to the lake he stored it at his father’s place.
The testimony of the plaintiff given in the deposition does not overcome the issue of whether he owned the boat which he insured with the defendant or whether he lost a boat at all. Had the parties rested with ho evidence other than the deposition being before the court, we do not think a motion for a directed verdict could properly be granted. The issues would be for the jury’s determination, and the fact that the defendant was not able to produce negative evidence would not entitle the plaintiff to win as a matter of law.
If the law were otherwise, anyone could allege that he ate a mouse which was in a can of pork and beans, and while he might or might not be able to recover on the' trial of the action against the canner and distributor of the food, he could win on a *388motion for summary judgment simply because there could not be a counter affidavit filed saying that there was no mouse in the can. All that a defendant could do in a situation such as is supposed above or in this case would be to rely on circumstantial evidence and the wisdom and honesty and good judgment of the jury to arrive at a correct verdict.
We do not think the plaintiff has sustained the burden of showing that there is no issue of fact to be tried by a jury, and we, therefore, reverse the ruling of the district court and remand the case for a trial upon the merits.' Costs are to abide the final outcome of this matter.
CROCKETT, C. J., and HENRIOD, J., concur.. 6 Moore Fed.Pr. at page 2817.