concurs in the result.
I concur in the result reached by the majority but disagree with the opinion insofar as it holds that the earlier judgment rendered in the case concerning course and scops was a final decision. Such a holding was not necessary to the opinion since the defendant neither appealed nor answered the appeal. The award of penalties is appropriate because defendant’s refusal to pay after the adverse, although not final, trial court decision on course and scope was, in my view, arbitrary and capricious.