
    (No. 173
    JOHN CHARLES UTZ, an infant, by Edward Utz, his next friend, Claimant, THE BOARD OF EDUCATION OF THE COUNTY OF BROOKE, a corporation, Respondent.
    
      Opinion filed December 13, 1943
    
    
      James R. Wilkin and Handlan, Garden & Matthews, for Claimant,
    
      Eslon B. Stephenson, assistant to the Attorney General, for the state.
   ROBERT L. BLAND, Judge.

The above claim was filed with the clerk of this court on September 1, 1942.

The petition alleges that claimant, an infant of approximately six years, was seriously and permanently injured on the fourth day of September 1941, on a state controlled highway known as the Follansbee-Eldersville road, in Brooke county, West Virginia, while being transported from the school at Follansbee to his home, in a school bus operated by Henry Clemens, an employee of and school bus driver for the board of education of said county of Brooke. It is charged that such injuries were the direct and proximate result of the negligent operation of said school bus, and that the claim is one which the state, as a sovereign commonwealth, should in equity and in good conscience discharge and pay.

Claimant therefore seeks to maintain his claim against the state in the sum of $20,000.00.

A majority of the court determined that the court is without ■prima facie jurisdiction to entertain said claim, declined to docket the same for hearing and dismissed it. Before an opinion had been prepared setting forth the reasons for such action on the part of majority members of the court a petition for rehearing was filed, and a very able argument was made before the court in support of said petition. Majority members of the court now find that the petition for rehearing shows no reason warranting a change of their original opinion that the court is without prima facie jurisdiction to entertain the claim. The cláim is not one against an administrative agency of the state government. The case is controlled by the majority decision announced in the cases of Jess E. Miller v. The Board of Education of Lewis County, 1 Ct. Claims (W. Va.) 205 and Mary Dillon v. The Board of Education of Summers County, 1 Ct Claims (W. Va.) 366.

A rehearing is denied.  