That principle, previous to Posey, had been a distinguishing factor between a release (releases all joint tortfeasors) and a covenant not to sue (covers only the defendant who is a party to the covenant). See, e.g., American Chain c. Co. v. Brunson, 157 Ga. App. 833 ( 278 S.E.2d 719); City Express Svc. v. Rich's, 148 Ga. App. 123 (4) ( 250 S.E.2d 867); Ford Motor Co. v. Lee, 137 Ga. App. 486 ( 224 S.E.2d 168), rev'd on other grounds, 237 Ga. 554, supra; Pennsylvania Threshermen c. Ins. Co. v. Hill, 113 Ga. App. 283, 288-289 ( 148 S.E.2d 83); Trice v. Wilson, 113 Ga. App. 715 (2) ( 149 S.E.2d 530); Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 56-57 ( 60 S.E.2d 770). Since Posey, a valid release of one tortfeasor by the plaintiff does not discharge other tortfeasors unless it is agreed that it will discharge them. Nevertheless, we do not believe that there was any error as herein alleged.

"[I]n a tort action, compensation, and not enrichment, is the basis for the award of damages." Atlantic C. L. R. Co. v. Ouzts, 82 Ga. App. 36 (3), 58 ( 60 S.E.2d 770). "There can be no double recovery of the amount of damage which one has sustained. . . As was said by the court in Lovejoy v. Murray, 3 Wall. 1, when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him to recover again for the same damage." Donaldson v. Carmichael, 102 Ga. 40, 42 ( 29 S.E. 135). Under the Donaldson case, the plaintiff upon the principles of equity and good conscience is not entitled to recover twice for the same damages, and since the compensation awarded the plaintiff by the State was clearly intended to compensate her in part for the same damages which she is seeking to recover in this action, the defendant could plead the payment of same in reduction or avoidance of the plaintiff's right of recovery but not as an absolute bar to her right of action.

Appellees insist, and the record supports their insistence: that all that occurred here was an agreement for a contribution by Slade and a covenant not to sue him; and that appellant was not released thereby, Moore v. Smith, 78 Ga. App. 49, 50 S.E.2d 219. The language of the instrument itself, the facts attending the agreement and its execution, and especially the colloquies had and actions taken in the court by the parties, affirmatively establish that this is so, and that under the law of Georgia as laid down in the cases appellee cites, there was no release of the cause of action. Donaldson v. Carmichael, 102 Ga. 40, 29 S.E. 135; Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 60 S.E.2d 770; Register v. Andris, 83 Ga. App. 632, 64 S.E.2d 196; and Harmon v. Givens, 88 Ga. App. 629, 77 S.E.2d 223. Appellant's final point: that it was entitled to a directed verdict on the ground that no negligence on the part of the driver of its truck was shown; that, if any negligence was shown, the evidence as a whole established as matter of law that it was the negligence of Slade Company which proximately and solely caused the injury; and that the negligence charged to appellant, that the driver of its truck signaled to the plaintiffs that the road was clear and for them to come ahead, could not have been a contributing cause of the injury; is, we think, based upon a conception of the facts which the record does not support and of the law which the cases do not sustain.

Under the law of this State, payment by a joint tortfeasor in exchange for a covenant not to sue is a pro tanto satisfaction of the recovery against other tortfeasors. Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 60 S.E.2d 770. Defendant argues that "the payments made by the joint tortfeasor, Thiokol, on account of plaintiff's injuries should be deducted from any damages awarded plaintiff against the United States."

The measure is the "enlightened conscience" of the trier of fact. See Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36(4), 60 S.E.2d 770. As to such damages, they are grievous. Despite the conscientious effort of the plaintiff toward recovery and despite the splendid medical help furnished him by the government, it is apparent that Cohen has been painfully transformed from a healthy vigorous man to an invalid through no fault of his own.

It is the duty of this Court to attempt to see that the plaintiff is fairly reimbursed, but by the same token, he is not entitled to make a profit from this unfortunate occurrence. Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 60 S.E.2d 770. It is the plaintiff's duty at all times to endeavor in every way to mitigate the damages.

"In 45 Am. Jur. p. 676, § 4, it is stated: `An injured person can have but one satisfaction for his injuries; and therefore the amount paid by the tortfeasor in whose favor the covenant not to sue was given will be regarded as a satisfaction pro tanto as to the joint tortfeasors.'" Atlantic C. L. R. Co. v. Ouzts, 82 Ga. App. 36, 59 ( 60 S.E.2d 770) (1950). The trial court properly reduced the verdict by the amount previously received by the injured plaintiff from the joint tortfeasor and the Court of Appeals erred in ordering such amount restored to the judgment.

Moore v. Smith, 78 Ga. App. 49 ( 50 S.E.2d 219). Where the right to sue has been reserved and the plaintiff has not received full satisfaction, the agreement will be construed to be a covenant not to sue because of the manifest intent of the parties. Atlantic C. L. R. Co. v. Ouzts, 82 Ga. App. 36 ( 60 S.E.2d 770). While a covenant not to sue can be made lis pendens and the suit dismissed as to the tortfeasors making the settlement ( Register v. Andris, 83 Ga. App. 632 ( 64 S.E.2d 196)), it is a non sequitur to claim that there is a covenant not to sue and yet at the same time continue the action against those who are parties to the agreement.

Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 231 (4) ( 476 SE2d 565) (1996). See Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 58 (2) ( 60 SE2d 770) (1950) (the universal principle that the person injured shall receive compensation commensurate with his loss or injury and no more is not intended to apply to punitive damages awards). (b) Attorney fees may be awarded where a defendant has acted in bad faith, been stubbornly litigious, or caused the plaintiff unnecessary trouble and expense.

(Citation and punctuation omitted.) Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 59 ( 60 S.E.2d 770) (1950). Thus, plaintiff can recover from the jury all special damages provable, but cannot receive in judgment again what has already been paid by the defendant or on the defendant's behalf by an insurer.