Dorothy L. HIGGINBOTHAM and John G. Higginbotham, Petitioners, v. GENERAL LIFE AND ACCIDENT INSURANCE COMPANY, et al., Respondents, 796 S.W.2d 695

OPINION RAY, Justice. The issue in this cause is whether the record reflects proper service of citation on General Life and Accident Insurance Company and National Benefit Life Insurance Company, both domestic insurance companies. The return on both defendants’ citations stated that they were served “on the 18 day of March, 1986 at 12:01 o’clock p.m.” The trial court rendered default judgment against both defendants. After hearing the motions for new trial presented by both defendants, the trial court expressly concluded that service was proper under former

article 3.64 of the Insurance Code, allowing service “at the home office of such company during business hours.” The court of appeals reversed the trial court judgment, concluding that there was no indication in the record that 12:01 p.m. was during defendants’ business hours. 750 S.W.2d 19. We hold that an express finding by the trial court necessarily included the finding that 12:01 p.m. that day was during business hours. We further hold that the trial court’s order was effective to amend the officer’s return. We reverse the court of appeals judgment and remand this cause to it for further proceedings.

Dorothy and John Higginbotham sued General Life and National Benefit for the refusal to pay for Dorothy’s medical expenses alleged to have been covered by insurance policies issued by those companies. When the insurers failed to answer, the trial court rendered default judgment against them. The return on the citations for the two defendants read substantially the same: Received this citation the 18 day of March, 1986, at 8:07 o’clock a.m. Executed at Fort Worth, within the county of Tarrant, state of Texas, on the 18 day of March, 1986, at 12:01 o’clock p.m., by summoning the within named corporation, Gen.

Life & Accident Ins. by delivering to Joyce Brown, President-Vice-President-Registered Agent-, in person of the said Gen. Life & Accident Ins. at 3900 SFwy a true copy of this citation together with the accompanying copy of plaintiffs original petition, having first endorsed on same the date of delivery. On the citation return for General Life the words “registered agent” were circled. The citation return for National Benefit had its name in the appropriate blanks but did not have any words circled. The insurance companies filed motions for new trial asking that the default judgments be set aside.

They failed to specifically raise the defect that 12:01 p.m. was not expressly recited to have been during business hours, but they did complain that Joyce Brown was not an officer or registered agent and that service was improper. At the time of service in 1986,

article 3.64 of the Insurance Code provided the following methods for service of process on domestic insurance companies: Process in any civil suit against any' “domestic” company, may be served only on the president, or any active vice president, or secretary, or general counsel residing at the city of the home office of the company, or by leaving a copy of same at the home office of such company during business hours. Insurance Code, ch. 491, § 1, art. 3.64, 52d Leg., 1951 Tex.Gen.Laws 868, 920, repealed by Act of Apr. 21, 1987, ch. 46, § 12, 70th Leg., 1987 Tex.Gen.Laws 79, 88.

The trial court conducted a hearing on the motions for new trial. The affidavits by vice presidents of both companies supporting the respective motions for new trial stated “someone received citations and rather than following the proper procedure, mistakenly placed them in the claim file.” The motions themselves contained identical allegations that “through someone’s error, these petitions were erroneously placed in the claim file of Mr. and Mrs.

Higginbotham, rather than forwarded to the corporate officers who then forwarded them to an attorney for the filing of an answer.” The trial court could properly take judicial notice that 12:01 p.m. on March 18,1986 was an early afternoon on a Tuesday that was not a statutory holiday. Tex.R.Civ.Evid. 201(b), (c). There was testimony that Joyce Brown was an employee of both insurance companies who worked in the office during the relevant time.

In the order overruling the motion for new trial, the trial court expressly found: However, the return established that service occurred at the offices of the defendants and the proof at the hearing reinforced that fact, and it was also proven that Ms. Brown, while not a “registered agent,” was an employee of these domes-tice [sic] insurance companies. This meets the requirement of Insurance Code

Article 3.64 to serve such a company inter alia “... by leaving a copy of same at the home office of such company during business hours.” Service was proper and the Court acquired jurisdiction. The trial court, finding that service was proper under the quoted provision of the statute, necessarily also found that service was made “during business hours.” The evidence in the record supported this finding. General Life and National Benefit each admitted they actually received citation.

The officer’s return, direct testimony and circumstantial evidence indicated that Joyce Brown was a clerical employee who took the citations during regular business hours. The record shows literal compliance with a method of service provided by the statute. The only apparent defect is that the officer’s return did not adequately recite such method of service. Neither insurance company pointed out nor expressly complained about such defect before the trial court. The trial court has express authority to allow amendment of the return to reflect the service that was actually had. See Tex.R.Civ.P. 118.

Since the record affirmatively shows service of citation, and the trial court in a formal order has found the facts that constitute the service that was had, we see no point in requiring the trial judge to sign a separate order labeled “Order Granting Amendment of Return.” The order signed by the judge in the record is tantamount to an order amending the return. Our holding in this case is consistent with the one opinion in which we have construed rule 118. In London v.

Chandler, 406 S.W.2d 203 (Tex.1966), petitioner claimed that a default judgment was invalid because the citation failed to state the date of issuance, and stating the date of issuance was an express requirement under the rules of civil procedure. We held that the mere failure to note the date of issuance did not make the citation invalid or the service of the citation ineffective. We stated this was “made clear by Rule 118 which provides for amendment of citations.” Id. We then noted that the citation showed the date of sealing and stamping, the date of delivery to the sheriff, and date of service.

Since the record showed a permissible period when the citation must have been issued, we held that the “failure of the clerk to note the date of issuance on the citation did not result in any prejudice to petitioner.” Id. In London, as in the present case, there was no order as such expressly amending the citation or citation return. The record and express finding of the trial court already establish the amendment of the incorrect or incomplete recitation on the return.

If that alleged defect had been properly raised before the trial court, it “might have been immediately cured by amendment,” and the appellate court should not have reversed the default judgment to require the trial court to expressly correct it. See generally Crain v. Griffis, 14 Tex. 358, 363 (1855). Because the record affirmatively demonstrated a proper form of service and contained an order tantamount to formal amendment of the return of citation, the record was sufficient to show valid service.

Our holding in this case should not be mistaken as a retreat from our line of cases holding that the record of service supporting a default judgment must show strict compliance with the rules governing service of process. See, e.g., McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Eagle Life Ins. Co. v. George, 473 S.W.2d 311 (Tex.Civ.App.—Beaumont 1971, writ ref’d). We adhere to our rule that “failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect.” Uvalde Country Club v.

Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985). Most of these opinions addressing the requirement that the record show strict compliance are writ of error attacks on default judgments. In such cases there is no record of service other than the citation return, and its recitations, taken as true, must show strict compliance with service requirements. We are not to be understood as holding that the citation return alone in this case would have been sufficient to show valid service.

Our holding in this case is restricted to situations in which there is a record (such as the evidence at the hearing on motion for new trial) showing strict compliance with a valid method of service and an order expressly amending the return or that is tantamount to an order amending the return of citation. We reverse the judgment of the court of appeals and remand the cause to that court for it to consider the defendants’ other points of error not previously addressed. PHILLIPS, C.J., files a dissenting opinion joined by COOK, HIGHTOWER and HECHT, JJ.