Fritz, Ard and Pressler. The opinion of the court was delivered by Fritz, P.J.A.D. Ard, J.A.D., (dissenting).
[154 NJSuper Page 273] This is an appeal*fn1 by plaintiffs from an adverse determination by way of summary judgment against them in a libel action. Most of the significant facts appear in the published opinion of the trial judge and we will not restate them. 143 N.J. Super. 387 (Law Div. 1976). We would add only that which we believe to be of substantial import and not the subject of comment in the opinion below: there is evidence which, if credited, might be found to demonstrate that the reluctance of deposed defendants to furnish the name of the "reliable and informed source" was produced by the specific request of Joseph Hartnett that he not "be revealed as the source." In this respect we observe that a court order was necessary to compel the ultimate identification of Hartnett as the "reliable and informed source."
We do not quarrel with the determination of the trial judge that Farrell v. Votator Div. of Cheretron Corp. , 62 N.J. 111 (1973), and R. 4:26-4 appear to control to defeat plaintiffs' argument that the statute of limitations did not commence to run until they discovered the name of the source, theretofore known to be "a source in the administration," but unnamed. It is entirely true that recent trends with respect to statute of limitations questions have extended such limitations by imposing discovery conditions upon their assertion in order to promote justice and afford equity, e.g., Moran v. Napolitano , 71 N.J. 133 (1976); Fox v. Passaic General Hosp. , 71 N.J. 122 (1976); Lopez v. Swyer , 62 N.J. 267 (1973). Nonetheless, we are satisfied that our court of last resort has not yet abrogated the necessity for "John Doe" complaints where an ascribable defendant (and the cause of action against him, her or it) is known, although a precise name is not known. We concur generally with the trial judge that Farrell commands:
Our fictitious name practice requires that when a claimant is in a position to describe a defendant in terms of what he did or failed to do which gave rise to the claim, an action against that defendant must be commenced within the limitations period even though the claimant does not then know defendant's name. * * * [143 N.J. Super. at 391]
In such circumstance we may respectfully question the continuing soundness of the fictitious name practice and rhetorically inquire why the "discovery rule" of Moran, Fox and Lopez should not apply to names and actual identities as well as conditions, but we may not alter this rule of our court of last resort and we may not ignore it. In re Education Ass'n of Passaic, Inc. , 117 N.J. Super. 255, 261 (App. Div. 1971), certif. den. 60 N.J. 198 (1972).
Accordingly, we confirm the determination by the trial judge that the statute of limitations should be deemed to run from no later than April 17, 1975.
On the other hand, Farrell also makes it abundantly clear that limitation statutes are "subject to later judicial interpretation
and application even though the interpretation and application have the effect of lengthening the defendant's jeopardy." 62 N.J. at 121 (emphasis supplied). While the statute involved, N.J.S.A. 2A:14-3, is unmistakable in its limitation of the commencement of actions to a period "within 1 year next after the publication of the alleged libel or slander" (thereby answering, perhaps the rhetorical question asked above), we think its application in matters in the courts should be made subject to the same concepts of justice as those which prompted Justice Jacobs to suggest in Farrell that when "the considerations of individual justice and the considerations of repose are in conflict * * * other factors may fairly be brought into play." 62 N.J. at 115. In our control of the proceedings in our courts toward the ends of the interests of justice, see Aruta v. Keller , 134 N.J. Super. 522 (App. Div. 1975), we believe ourselves to be at liberty to restrict the statute to the purposes for which it was designed: repose for the benefit of the individual whose conduct has not cost him the privilege, and to bring other factors into play toward that end when considerations of individual justice require. There is no longer any doubt that a defendant may be estopped from pleading the statute of limitations if he is guilty of inequitable conduct. Barres v. Holt, Rinehart & Winston, Inc. , 131 N.J. Super. 371, 390 (Law Div. 1974), aff'd o.b. 141 N.J. Super. 563 (App. Div. 1976), aff'd o.b. 74 N.J. 461 (1977).
So we hold that with the spoken word -- so boundless in its availability and so fraught with potential for harm in wrongful use -- one who speaks respecting another and then actively hides his identity should not enjoy the benefits of repose to the detriment of one who is harmed and who, though diligent, is in fact the victim of the intended concealment. We recognize that considerations of individual justice in such case may be clearly paramount to considerations of repose, and the equitable doctrine of estoppel should be available to promote justice. While not entirely
analogous, State v. United States Steel Corp. , 22 N.J. 341 (1956), is instructive:
Such a rule involves the identification, evaluation and weighing of equities, and its application may depend upon such considerations, among others, as diligence, good faith, and intentional concealment. For all the reasons set forth in Lopez, supra , 62 N.J. at 274-276, we think this can better be done by a judge than a jury, and ...